ORDER
Shanker Raju, Member (J)
1. It is trite that the Recruitment Rules (RRs, for short) under Article 309 of the Constitution of India govern service conditions, including promotion of Government employees. Whenever a post held by a Government servant has no promotional avenues and there are no RRs to operate promotion, it is always administrative instructions which operate the field.
2. In the above backdrop the Fifth Central Pay Commission with an object to create a safety net to the Government servants to deal with the problems of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues recommended introduction of the Assured Career Progression (ACP, for short) Scheme.
3. The aforesaid Scheme envisages grant of two financial upgradation on completion of 12 and 24 years of service respectively. The grant of ACP would be governed following the same criteria as of regular DPC in exploring the suitability for upgradation.
4. The conditions for grant of benefits under the Scheme, inter alia, contain grant of two upgradations in the case of no regular promotion on equal intervals of 12 and 24 years, with the following conditions contained in Clause 7:
7. Financial upgradation under the Scheme shall be given to the next higher grade in accordance with the 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 by the Ministries/Departments concerned 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 Notification dated September 30, 1997 of the Ministry of Finance (Department of Expenditure). For instance, incumbents of isolated posts in the pay-scale S-4, as indicated in Annexure-II, will be eligible for the purposed two financial upgradations only to the pay scales S-5 and S-6, Financial upgradation on a dynamic basis (i.e. without having to create posts in the relevant scales of pay) has been recommended by the Fifth Central Pay Commission only for the incumbents of isolated posts which have no avenues of promotion at all. Since financial upgradations under the Scheme shall be personal to the incumbent of the isolated post, the same shall be filled at its original level (pay-scale) when vacated. Posts which are part of a well-defined cadre shall not qualify for the ACP Scheme on dynamic basis. The ACP benefits in their case shall be granted conforming to the existing hierarchical structure only;
5. In the above backdrop it is relevant to give the brief factual matrix of the case. Applicants, who had been initially recruited as Ski Instructors and Mountaineering Guide on 30.12.1972 and 10.1.1973 respectively in the then existing pay scale of Rs. 400-950/-, which was later on revised in the Third, Fourth and Fifth Central Pay Commissions to the pay scales of Rs. 700-1300, Rs. 2200-4000 and Rs. 8000-13500 respectively. Applicants having completed 33 years of service had a grievance of being working on isolated posts without any promotional avenues and acute stagnation.
6. The study of Staff Inspection (SIU) Unit made in 1986 in the Department of Tourism culminated into an order passed on 8.1.1988, where the posts of applicants have been downgraded in the pay scale of Rs. 2000-3500 from Rs. 2200-4000 with creation of one rung in the cadre, i.e., Assistant Ski Instructor in the pay scale of Rs. 1400-2300 and Chief Ski Instructor in the pay scale of Rs. 2200-4000. The Ski Instructors were placed in the pay scale of Rs. 2000-3500. However, as there has been an alteration of conditions of service and reduction of pay scale of applicants, without affording an opportunity their rights were protected by allowing them to draw pay in the pay scale of Rs. 2200-4000 as personal to them.
7. Department of Personnel and Training (DoP&T) when consulted on representation of applicants for application of grant of financial upgradation to them vide office memorandum dated 25.8.2003, on advice of the DoP&T the Department of Tourism intimated applicants that the Ski Instructors had been holding the post in the pay scale of Rs. 4500-7000 with protection of pay scale of Rs. 8000-13500 on personal basis and as the Ski Instructors would be getting, after grant of second financial upgradation, the pay scale of Rs. 8000-13500 in the hierarchy of the cadre, further grant of ACP would not be feasible.
8. However, representations further preferred resulted in re-examination of the grievance of applicants in consultation with the DoP&T, where the documents annexed with the counter reply show that the posts of applicants have been recommended to be treated as isolated and for grant of hierarchical pay scale in Annexure-2 of the ACP of OM dated 9.9.1999 DoP&T did not agree to the proposal on the ground that they are having a protected pay scale, which is equivalent to the highest rung in their cadre.
9. Shri L.R. Khatana, learned Counsel appearing for applicants cited clarification No. 33 of the ACP Scheme as well as clarification No. 40, which are reproduced as under:
S. No. Point of doubt Clarification
33. An employee was promoted from Grade A to Grade C. Grade B was introduced in the hierarchy in between Grade A and Grade C subsequent to such promotion. Will he be entitled to any more financial upgradation under the ACP Scheme (ACPS) considering that he is already placed in the third level of the hierarchy? The reply is in the affirmative. The employee has got only one promotion in his career as per the hierarchy existing at the time of his promotion. The subsequent creation of the any material difference in the situation in relation to the case of this employee for the purpose of grant of second financial upgradation under ACPS. The newly created Grade B would, as such, need to be ignored in his case. However, persons in Grade A, who become entitled to financial upgradation only after introduction of Grade B in the hierarchy, will be entitled for grant of financial upgradation only in Grade B subject to fulfillment of the other stipulations and conditions specified in the ACP Scheme introduced on 9.8.1999.
40. An employee drawing pay in the scale of Rs. 800-1150 (pre-revised) was declared surplus and was re-deployed as Peon in a Ministry through the Surplus Cell in the scale of Rs. 750-940 (pre-revised). However, he was allowed to draw pay in the scale of Rs. 800-1150 as personal to him even after redeployment in the lower grade. What shall be his entitlements under ACPS? As the employee has remained in the scale of Rs. 800-1150 all along and has not availed any promotion, he is entitled to two financial upgradations in a scale higher than Rs. 800-1150 (pre-revised) irrespective of the post actually held after redeployment. Since in the Ministry, a Group D employee is eligible for promotion to the grade of LDC provided he is a matriculate and as a post in the scale of Rs. 825-1200 (S-4) is not in the normal hierarchy in the Secretariat, such an employee can be considered for two financial upgradations in the grades of LDC and UDC provided he is a matriculate Otherwise he will get only one financial upgradation in the revised scale of Rs. 825-1200 (Rs.2750-4400 revised). Cases of other persons re-deployed to lower posts through the Surplus Cell may also be regulated accordingly.
10. In the light of the above, it is stated that once on introduction of an intermediate grade in the hierarchy of the cadre and when there is reduction to a lower pay scale, ACP would be admissible and as per Anneuxre-2 to hierarchy of the pay scale, would be the criteria for according first and second upgradation.
11. Learned Counsel has relied upon a decision of the Jodhpur Bench of this Tribunal in Bhagwan Singh Gehlot v .Union of India and Anr. ATJ 2003 (1) CAT 540, to contend that when a lower pay scale has been accorded, yet under the ACP Scheme one is entitled to the pay scale as per the financial upgradation in the Annexure-2 on the basis of pay scale held by the concerned.
12. Learned Counsel would also rely upon the decision of the Apex Court in State of Tripura and Ors. v. K.K. Roy , to contend that in the service career of a Government servant progression is must. Management must provide realistic opportunities for promising employees to move upward. In such view of the matter ACP, which has been promulgated being a safety net is necessary to be accorded, failing which the very object of the welfare legislation and also the object to mitigate hardship in genuine stagnation would go frustrate.
13. Learned Counsel further stated that whereas applicants had been in the pay scale of Rs. 8000-13500, which is revised one, since their appointment, yet they have been deprived of financial upgradation despite the fact that there are no promotional avenues for them and the Department of Tourism itself treated the posts of applicants as isolated.
14. On the other hand, Shri Hari Nath Ram, learned Counsel appearing for respondents vehemently opposed the contentions and stated that denial of ACP to applicants has been on a meticulous consideration when there is no stagnation and applicants who had been placed in the pay scale of Rs. 2000-3500 there is an avenue of next pay scale on promotion as Chief Ski Instructor. Accordingly, DoP&T on advice denied it on the ground that on protection of pay though functionally the posts held by applicants are placed in the lower pay scale it would be difficult to allow them the pay scale of Rs. 12000-16500 under the ACP Scheme.
15. On careful consideration of the rival contentions of the parties, there cannot be a denial from the fact, which is established by the Apex Court in Council of Scientific and Industrial Research v. K.G.S. Bhatt , that promotional avenues are must for effective performance of an employee. The Management is bound to create promotional avenues as an incentive.
16. In the light of the above, what has been promulgated by the ACP as an underlined object of creating a safety net is grant of two financial upgradations to those who had not been promoted in the service tenure for want of vacancies and have no promotional avenues, yet stepping ahead in the matter of pay scale would be a substitute for removing the stagnation and mitigate the hardship. In such view of the matter a financial upgradation would have to be viewed not with the sole criteria of promotional avenues but the factor which is of paramount importance is the movement in the higher pay scale. No doubt, condition No. 7 attached to the ACP Scheme clearly rules that financial upgradation would be in the next higher grade without creating new post but in case of isolated posts which are defined as having no feeder or promotional cadre, Annexure-2, which indicates in the hierarchy the pay scale to be accorded as first and second financial upgradations, would have to be accorded on dynamic basis. From time to time, Government when faced with difficulties to implement the ACP Scheme and whenever the doubts had been created the DoP&T had clarified by issuing memorandum, one of such memorandum of 18.7.2001 at serial No. 33 on a doubt in case where an intermediate grade has been substituted, held that the financial upgradation would not be impeded, in any manner, by introduction of the grade.
17. In the clarification contained in paragraph 40, where persons having a higher grade when on redeployment were placed in the lower pay scale, it was decided that the financial upgradations would have to be viewed deeming them in the pay scale of erstwhile pay scale irrespective of post actually held. Whenever a clarification comes in conflict with the main provisions and has a tendency to override the provisions of the main Scheme the same shall not be admissible but when the Scheme itself in paragraph-7 provides two financial upgradations without creation of post in the next hierarchy in case of any disturbance in hierarchy by reduction of pay scale or by creation of an intermediate grade, in that event, when no methodology has been devised, the clarification would be a supplementary one, not in any manner in conflict with the main Scheme.
18. If one has regard to the above, initially before the SIU study done in 1986 and implemented in 1988 there was only one rung of the cadre of Ski Instructor but later on more grades have been evolved, i.e., Assistant Ski Instructor and Chief Ski Instructor. However, the fact remains that applicants, who had been erstwhile appointed in the pay scale, which remained as it is even after recommendations by the Pay Commissions, they continued to hold the same pay scale even after downgrading of their revised pay scale, applicants continued on protection of pay scale on personal basis in the same pay scale. In such an event depriving them in terms of the advancement to the next grade, which cannot be without the revision of the pay scale, as the promotion has one of its ingredients; the basic one includes upgradation of pay scale, denying applicants financial upgradation cannot be countenanced in law. If a person is to move on promotion to the same pay scale that would never be a promotion and in such an event it would not create an impediment for grant of upgradation in ACP.
19. We are of the considered view that the DoP&T to this effect simply because the upgraded pay scale has been on personal basis given to applicants, had not at all considered their own clarification Nos. 33 and 40 while disposing of the claim of applicants. The cadre controlling Ministry of applicants, as per record produced by respondents, has recommended to the DoP&T to treat the posts of Ski Instructor as isolated, as there is no promotional avenues available to them, yet non-grant of financial upgradation as per Annexure-2 of the ACP Scheme of 1999 was deprived of on a ground which does not take into consideration the correct perspective and the object behind the ACP Scheme to mitigate the hardship and stagnation. If on promotion one has to be given the same pay scale which he is carrying right from the inception of his service then what ACP Scheme envisages as a safety net the financial upgradation would go redundant and the very object of the Scheme would go frustrate. The stagnation would be mitigated and the hardship can be lessened if an employee having a pay scale who had not earned promotion, like applicants before us, even after completion of more than 30 years of service and not even a single promotion has accrued to them, would entitle them to be upgraded financially, which would never be possible without grant of two pay scales, i.e., first and second upgradations in the hierarchy as per Annexure-2. If the advice of DoP&T is subscribed in its entirety not only it would be a stagnation for applicants in service but also deprivation of financial upgradation against the ACP Scheme. It is very strange that the DoP&T who itself has created a Scheme and clarified it from time to time, has not applied its mind to the aforesaid clarifications to consider the cases of applicants.
20. In our considered view though the advice of the DoP&T accorded in the present case has been relied upon by the Ministry of Tourism to deny applicants two financial upgradations, yet the advice of the DoP&T we find is not in consonance with the Scheme and the clarifications thereof. The very object of the non-avenues of promotion and mitigating the hardship has not been followed. It is trite that an administrative authority when decides an issue it should be in its discretion which should be exercised judiciously. A judicious order would not be which decides the issue de hors the rules and oblivious of the position of law.
21. In the result, for the foregoing reasons, we do not subscribe to the DoP&T recommendations and partly allow this OA by setting aside the impugned order. The matter is remitted back to the respondents to re-consider the issue of grant of two financial upgradations to applicants under the ACP Scheme of 1999 in accordance with the Scheme, its clarifications and the observations made by us above. It is needless to mention that such a re-consideration would culminate into a reasoned order to be passed, within a period of three months from the date of receipt of a copy of this order. In the event applicants are made entitled to the benefit of two financial upgradations under the ACP Scheme, the same would be bestowed upon them with all consequential benefits. No costs.
