IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2633 of 2007()
1. THE COMMANDANT,
... Petitioner
2. DIRECTOR GENERAL OF CISF,
3. UNION OF INDIA, REPRESENTED BY
Vs
1. SAM JOSE,
... Respondent
2. V.C.S.NAIR,
3. KALYAN AIND,
4. P.C.KURUP,
5. K.N.RAO,
For Petitioner :SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR
For Respondent : No Appearance
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :17/06/2008
O R D E R
J.B.Koshy & P.N.Ravindran, JJ.
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W.A.Nos.2633,2676,2782,2798,2837,2843/07 &
3,61,264,288,359,392,432,484 & 1180/08
==============================
Dated this the 17th day of June, 2008.
JUDGMENT
Ravindran,J.
These Writ Appeals arise from the common judgment dated 5.12.2006
delivered by the learned Single Judge in W.P.(C)No.39398 of 2003 and
connected cases. They were therefore heard together and are being
disposed of by this common judgment.
2. The respondents in the Writ Petitions are the appellants in these
Writ Appeals. The dispute that arose for adjudication in the Writ Petitions
relates to the eligibility of the writ petitioners for the benefit of upgradation
under the Assured Career Progression Scheme, hereinafter referred to as the
“ACP Scheme” for short. The ACP Scheme was introduced with effect from
9.9.1999 in the light of the recommendations of the Fifth Central Pay
Commission, with a view to ameliorate the problem of stagnation and
resultant hardship faced by Central Government employees due to lack of
adequate avenues for promotion.
3. Ext.R1(a) produced by the appellants along with the counter
affidavit filed in W.P.(C)No.39398 of 2003 from which W.A.No.2633 of 2007
arises, is a copy of the ACP Scheme. The ACP Scheme envisages placement
in the higher scale of pay through financial upgradation. It is not a
functional/regular promotion and does not result in the creation of new posts.
WA 2633/07, etc. -: 2 :-
The ACP Scheme contemplates the first financial upgradation after 12 years
of regular service and the second upgradation after 12 years of regular
service from the date of the first financial gradation subject to fulfillment of
the prescribed conditions. The financial upgradation under the ACP Scheme
will be available only if an employee does not get regular promotion within a
period of 12 years and 24 years respectively. If within the period of 12 years
of regular service, an employee gets one regular promotion, he will be
eligible only for the second financial upgradation on completion of 24 years of
regular service. An employee, who gets two promotions on a regular basis,
will not get any benefit under the ACP Scheme. One of the conditions subject
to which financial upgradation is granted under the ACP Scheme is that the
employee while accepting the said benefit shall be deemed to have given his
unqualified acceptance for regular promotion on occurrence of vacancy in the
higher post subsequently. As per paragraph 6 of Ext.R1(a), fulfillment of the
norms for promotion like passing of departmental examination is essential for
getting the benefit under the ACP Scheme.
4. The writ petitioners in all these cases are employees of the Central
Industrial Security Force, hereinafter referred to as the “CISF” for short. All
of them were granted financial upgradation under the ACP Scheme subject to
the condition that they shall undergo the Promotion Cadre Course,
hereinafter referred to as the “PCC” for short, and qualify in the course,
failing which the financial upgradation earlier given to them will be stopped
from the date on which they express their unwillingness to be detailed for the
WA 2633/07, etc. -: 3 :-
PCC or failed to qualify in the same.
5. According to the Central Industrial Security Force (Subordinate)
Service Recruitment Rules, 1999, which came into force with effect 4.2.2000,
the writ petitioners have to pass the PCC for getting promotion to the higher
posts. After the rules were introduced, the Directorate of the CISF issued a
clarification to the effect that those who have not been detailed for PCC or
refuse to undergo or fail to qualify in the PCC will not be entitled to the
financial upgradation granted to them from the date of expression of their
unwillingness or the date on which they failed to pass the PCC. It was also
clarified that the pay and allowances granted to them from the date of
upgradation to the date of stoppage of such benefits will be recovered from
them. The writ petitioners were either unwilling to be detailed for the PCC or
failed to successfully complete the PCC. For that reason, steps were taken to
recover the higher pay and allowances granted to them. The Writ Petitions
were thereupon filed challenging the recovery proceedings. The learned
Single Judge who heard the Writ Petitions, held relying on Circular No.ESTT-
1/37/05 dated 19.10.2005 (marked as Ext.P1 in W.P.(C)No.1407 of 2006)
that the writ petitioners are entitled to one more chance to complete the PCC
and therefore, the benefits given to them under the ACP Scheme cannot be
cancelled or the salary and allowances paid under the ACP Scheme should
not be recovered, till each individual case is considered afresh in the light of
the said circular. The appellants have in these appeals canvassed the
correctness of the decision of the learned Single Judge.
WA 2633/07, etc. -: 4 :-
6. We heard Sri. P.Parameswaran Nair, the learned Assistant Solicitor
General appearing for the appellants. Ext.P1 circular dated 19.10.2005 reads
as follows:
“It has been experienced in the recent past that the
personnel, irrespective of any rank as and when detailed for
PCC, submit their unwillingness to attend the same on one
pretext or the other.
02. Qualifying Promotion Cadre Course and promotion
are two distinct issues and cannot be clubbed together, though
both are inter related as mandated in the respective
Recruitment Rules. While PCC is intended to improve
professional knowledge and skills of an individual thereby
ensuring growth and development of the organization,
promotion is to ensure selection of suitable personnel to hold
higher responsibilities and to provide avenues in career
progression. Skill upgradation of the personnel depending on
the felt need of the organization is an organizational
requirement and therefore not falling in the realm of
individual’s discretion. Therefore, undergoing PCC is a duty
imposed on the personnel.
03. A person will be given three chances to attend the
PCC. Non-attendance of PCC on the basis of unwillingness will
amount to loss of a chance. For example, if he submits
Unwillingness to attend PCC for the first time, he would lose
one of the three chances of attending PCC. Thereafter, he will
be able to avail only two chances of attending PCC.
Unwillingness, if tendered, should be unconditional which shall
be examined on case to case basis and would be approved or
rejected on merit by the concerned DIG. Exemption from PCC
WA 2633/07, etc. -: 5 :-
will be granted by the DIG concerned on the ground which are
beyond the control of the personnel concerned e.g. deputation
to outside India, administrative reasons, etc.
04. In case exemption as envisaged at para (3) above is
granted, the personnel will not lose his chance out of the
above three chances.
05. Refusal to undergo PCC will entail disciplinary action
and also the individual will lose one chance of undergoing PCC.
06. All details regarding detailment on PCC and
submission of unwillingness and exemption granted on the
aforesaid grounds, if any, will be recorded in the service book
of the individual concerned every time. This will keep an
account of the number of chances an individual has availed.
07. Those personnel who have already availed three
chances and could not qualify PCC as on date should be given
the opportunity of availing fourth chance (in case any one is
willing) as provided in CISF Circular No.39/1993 dated
23/26.11.1993, as an exceptional case. After giving this last
and fourth chance as per Circular No.39/1993 dated
23/26.11.1993 there will be no further fourth chance for
anybody in future and the Circular No.39/1993 will cease to
exist.
08. These instructions will come into force with
immediate effect.” (Emphasis supplied).
7. As noticed earlier, the ACP Scheme was implemented with effect
from 9.8.1999. The circular dated 19.10.2005 extracted above, clarifies that
every employee will be given three chances to attend the PCC, that
exemption from PCC will be granted by the DIG concerned on grounds which
are beyond the control of the personnel concerned, that if a person expresses
WA 2633/07, etc. -: 6 :-
unwillingness to attend the PCC for the first time, he will lose one of the three
chances and will be able to avail only two more chances of attending the PCC
and that in case exemption is granted the personnel will not lose any of the
three chances. The circular also clarifies that refusal to undergo PCC will
entail disciplinary action and the individual concerned will lose one chance of
undergoing the PCC. It is further clarified that those personnel who have
already availed three chances and could not qualify in the PCC as on
19.10.2005 should be given the opportunity of availing a fourth chance and
that there will be no further fourth chance for anybody in future and the
circular will cease to be in force. The appellants contended before the learned
Single Judge that the circular is only prospective in operation and has
application only to persons who have to undergo the PCC in future. The
learned Single Judge repelled the said contention on the ground that the
circular is clarificatory in nature and it grants a fourth chance to those
personnel who have failed to qualify in the PCC in three chances. In that
view of the matter, the learned Single Judge directed the appellants to
consider the case of the writ petitioners in the light of the circular dated
19.10.2005. The learned Single Judge also directed that if any one among
the writ petitioners have passed the PCC within the permitted four chances,
the benefits given to them under the ACP Scheme should not be cancelled or
recovery effected. To enable the appellants to undertake that exercise, the
orders challenged in the Writ Petitions were quashed reserving liberty with
the appellants to pass fresh orders in the light of the circular dated
WA 2633/07, etc. -: 7 :-
19.10.2005.
8. We have considered the submissions made at the Bar by the
learned Assistant Solicitor General. We agree with the learned Single Judge
that by virtue of the circular dated 19.10.2005 the personnel of the CISF are
entitled to avail a fourth chance to qualify in the PCC. Necessarily, the
appellants have to consider the matter afresh in the light of the circular dated
19.10.2005. The learned Single Judge has only directed the appellants to
consider the case of the writ petitioners in the light of the said circular and
not to cancel the benefits given to them or to effect recovery in case any one
of them successfully completes the PCC within the permitted four chances.
In other words, the writ petitioners will continue to avail the benefit of ACP
Scheme, only if they clear the PCC within the permitted four chances.
9. In that view of the matter, we are of the opinion that no
interference is called for with the judgment of the learned Single Judge. The
Writ Appeals accordingly fail and they are dismissed reserving liberty with the
appellants to consider the case of the writ petitioners in the light of the
circular dated 19.10.2005 and to pass fresh orders as directed by the learned
Single Judge.
J.B.Koshy,
Judge.
P.N.Ravindran,
Judge.
ess 1/7
WA 2633/07, etc. -: 8 :-
Dated this the 17th day of June, 2008.
ORDER
Ravindran, J.
For the reasons stated in the affidavit, delay is condoned.