High Court Kerala High Court

The Commandant vs Sam Jose on 17 June, 2008

Kerala High Court
The Commandant vs Sam Jose on 17 June, 2008
       

  

  

 
 
  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.
              ===============================
              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.