S. Sundaram v. Union Of India And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WP.CT/24/2024 S.Sundaram Vs.

Union of India and others Mr. Rajinder Singh ... for the petitioner Mr. V.D.Sivabalan ... for the respondents June 18, 2024 [SR] Item No.3 Learned counsel for the petitioner argues that by the impugned order, the Tribunal turned down the petitioner's prayer for grant of the benefits of the ACP (Assured Career Progression) Scheme on the ground that the petitioner failed to clear the departmental qualification examination whereas such examination is not a pre-requisite under the Recruitment Rules for getting such benefits.

Learned counsel places reliance on the Recruitment Rules. Under Column 12 thereof, pertaining to serial No. 3, it is argued that the departmental qualifying test is only applicable in respect of unskilled labours. However, the petitioner was given the status of semi skilled in the year 1987 and thereafter the petitioner has completed more than 12 years in the said pay scale of Rs. 1100/-. Learned counsel also places reliance on a judgment of the Supreme Court in the matter of Amresh Kumar Sinha and others vs The State of Bihar and others where the Supreme Court observed that the ACP Scheme was enforced on the recommendation of the Vth Central Pay Commission in context with Group C and D employees and it provided monetary benefit to the employee on completion of 12 years and 24 years of regular service who were not able to get promotion. The scheme, it was held, as such, was antistagnation 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.

Proceeding on such premise, the Supreme Court held that in view of the said legal position coupled with the facts of the said case that the qualification of the graduation prescribed was for the promotion to the post of Accounts Officer rather than for the grant of in situ promotion on the non-functional post or for extending the benefits of ACP which is purely and simply in the nature of grant of monetary benefit without actually effectuating the promotion to any higher post, the judgment and order of the Division Bench of the High Court therein was set aside.

The Supreme Court observed that the appellants therein were entitled to financial upgradation under the ACP Scheme on completion of the requisite regular service "ignoring the higher qualification prescribed for the next higher post" (emphasis supplied) as grant of such benefit is not actually a promotion but only financial upgradation and if the higher qualification is insisted it would frustrate the purpose of the either scheme.

Learned counsel for the respondents hands over a Notification issued in the Official Gazette dated January 31, 1987 whereby the said Recruitment Rules relied on by the petitioner were amended, introducing semi-skilled labours within the contemplation of the provision therein. It is argued that by virtue of such incorporation, the petitioner, who is a semi-skilled labour, had mandatorily to qualify in the departmental qualifying test under Serial No. 3 of the said Recruitment Rules. That apart, it is argued that in the concerned Office Memorandum dated August 9, 1999, which has been relied on by the Tribunal, fulfillment of normal promotion norms including departmental examination has been incorporated as a foundation even for grant of benefits under the ACP Scheme.

Thus, it is argued that the Tribunal was justified in refusing the prayer for financial upgradation of the petitioner.

We find from the records that the judgment of the Supreme Court relied on by the petitioner was not produced before the Tribunal. Moreover, the Tribunal also did not have the benefit of perusing the amendment to the Recruitment Rules by virtue of the Notification dated January 31, 1987 which has been handed over today in Court by learned counsel for the respondent.

Hence, the interest of justice would require that the matter is remanded to the Tribunal for permitting the

Tribunal to have an opportunity of perusal of the said judgment and the amendment and to come to a fresh finding with regard to the payers of the petitioner.

Accordingly, WP.CT/24/2024 is allowed on contest, thereby setting aside the impugned order of the Tribunal and remanding the matter to the Tribunal for a fresh adjudication on merits by taking into account the materials already on record over and above the amendment incorporated by the Notification dated January 31, 1987 to the Recruitment Rules and the judgment of the Supreme Court in the matter of Amresh Kumar Sinha and others vs The State of Bihar and others. It is expected that the Tribunal shall endeavour to dispose of the matter afresh as expeditiously as possible, preferably within four months from the date of communication of this order to the Tribunal. No order as to costs.

(Sabyasachi Bhattacharyya, J.) (Ajoy Kumar Mukherjee, J.)