C. Narasimha Vs. the Secretary, Ministry of Information and Broadcasting and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/939383
CourtCentral Administrative Tribunal CAT Hyderabad
Decided OnAug-10-2009
Case NumberO.A.486 of 2007
JudgeTHE HONOURABLE MRS. BHARATI RAY MEMBER (JUDL.) & THE HONOURABLE MR. HRIDAY NARAIN MEMBER (ADMN.)
AppellantC. Narasimha
RespondentThe Secretary, Ministry of Information and Broadcasting and Others
Advocates:Counsel for the Applicant : Ms. S. Anuradha. Counsel for the Respondents : Mrs. P. Sarada for Y. Ravindra.
Excerpt:
(per hon'ble mrs. bharati ray, member (j) heard ms. anuradha learned counsel for the applicant and mrs. p. sarada for mr. y. ravindra learned counsel for the respondents. we have gone through the facts of the case and material papers placed before us. 2. the applicant was initially appointed as a cleaner in the respondents' organisation in the year 1966 and promoted as driver in the year 1973. he was selected as field publicity assistant (f.p.a.) on 23.12.1988. it is the case of the applicant that basing on the vth pay commission recommendations, the assured career progression scheme for central government civilian employees in all ministries/departments has been introduced through office memorandum no. 35034/1/97-estt(d) dated 09.08.99. in terms of the said scheme applicant is entitled to get the benefit of the financial upgradation as he has not been given any promotion after he was directly recruited as f.p.a. in the year 1988. applicant submitted a representation to the respondents on 1.10.2002 to grant him financial upgradation from the scale of rs.4500-7000 to the next grade of rs.5000-8000 as per the avenue of promotion by extending the financial upgradation benefit under the acp scheme. the respondents vide order dated 07.11.2002 replied to the said representation stating that his representation was considered by the competent authority and since the applicant has already got two promotions in his service career, he is not eligible for any financial upgradation under the acp scheme. being aggrieved by the same the applicant has approached this tribunal earlier in oa 1099/2003 for a declaration that the rejection of his representation dated 1.10.02 for grant of financial upgradation under acp scheme by the impugned order dated 7.11.2002 is arbitrary, illegal and unconstitutional violative of articles 14 and 16 of the constitution of india and consequently direct the respondents to fix his pay in scale of rs.5000-8000/- from 23.12.2000 the date on which he completed 12 years of service in scale rs.4500-7000 and pay him arrears of salary allowances etc. the said oa was disposed of with a direction on the respondents to reconsider the request of the applicant in the light of the outcome of the issue referred to the ministry as mentioned in para-8 of the letter dated 10.12.1999, copy of which was enclosed as annexue -vii to the counter reply filed by the respondents in the said oa, and pass appropriate order. the tribunal has also directed them to extend the benefit if it is found that he is entitled for the same. respondents were given two months time from the date of receipt of a copy of the order to complete the entire exercise. 3. pursuant to the order of the tribunal the 3rd respondent herein vide order dated 20-04-2007 informed the applicant that his case has been examined and it is found that the applicant had already availed of two promotions prior to introduction of acp scheme. it is pointed out that applicant was initially appointed as cleaner in the year 1966 and was promoted to the post of driver in the year 1973. subsequently he was appointed to the post of fpa on 23.12.1988. his appointment to the post of fpa was treated as promotion from the post of driver as per recruitment rules and as outlined in para-4 of directorate's letter no. a-45011/18/99-admn, dated 10.12.1999. copy of the order is enclosed as annexure a1 at page 12 of the oa. being aggrieved by the same the applicant has approached this tribunal seeking for the following relief : 4. to call for the records pertaining to administrative officer, government of india, directorate of field publicity, letter no. 45011/8/2001-admn dated 07.11.2002 rejecting the applicant's representation for grant of financial upgradation under acp scheme and the director order f.no. 1/rec/ cc/2007-dfp(hyd) dated 20.04.2007 reiterating the previous orders inspite of the hon'ble tribunal's orders in oa 1099/2003 and quash the same by declaring it as arbitrary, illegal and unconstitutional violative of articles of 14 and 16 of the constitution of india and consequently direct the respondents to fix his pay in scale rs.5000-8000 from 23.12.00 the date on which he completed 12 years of service in scale rs.4500-7000 and pay him arrears of salary allowances etc. and interest at 18% for the delayed payment. 5. respondents have contested the application by filing a counter reply. we have gone through the facts of the case and material papers placed before us. 6. it is the case of the respondents that the applicant who was initially appointed as cleaner in 1966 got two promotions during his regular service i.e. promoted to the post of driver in 1973 and again promoted to the post of field publicity assistant i 1988 under the 50% quota for departmental promotions. in para-5 of the counter reply respondents have denied that the applicant was appointed to the post of fpa. it is the contention of the respondents that as per o.m. no. 35034/1/97-estt.(d) dated 9.8.1999 an employee who received two prior promotions on regular basis will not be entitled for acp scheme. they have enclosed a copy of the om dated 9.8.1999 as annexure-iii to the counter reply. it is contended by the respondents that applicant sri narasimha completed 12 years of service as fpa he is not entitled for acp scheme as he had already got two promotions from the cadre to which he was directly recruited. 7. drawing our attention to annexure r-i to the counter reply, govt. of india order no. a-45011/18/99-admn. dated 10-12-99, learned counsel for the applicant ms. s. anuradha submitted that in para-8 of the said letter in so far as the case of fpas is concerned, the matter has been referred to the ministry to seek their guidance for granting higher scale to them under acp scheme. she has further taken us to the communication of the department dated 5.9.2000 which is enclosed at page-12 as annexure r-ii to the reply, the contends of the letter are reproduced herein below : "sub:- implementation of assured career progression (acp) scheme in respect of fpas in the dfp. this is in continuation of this directorate's letter of even number dated 10th december, 1999 regarding clarification on implementation of acp scheme. 2.as regards the implementation of the acp scheme in respect of fpas of this dte. it is stated that the following defined hierarchical grades were in existence on 9.8.1999, the date of implementation of the scheme. (i)rs. 4500-7000 (ii)rs. 5000-8000 (iii)rs. 5500-9000 3. according to para-7 of annexure i of dpandt's o.m. no. 35034/1/97-estt.(i) dated 9.8.1999 financial upgradation under the acp scheme shall be given to the next grade in accordance with the existing hierarchy in a cadre. 4. all the regional offices may, therefore, implement the scheme in respect of fpas, keeping in view their hierarchical grades as mentioned in para-2 above. " 8. it is the contention of the learned counsel for the applicant that in terms of clarification given by the ministry the applicant is entitled for next higher scale as indicated therein since he was given appointment in the post of fpa. it is the contention of the learned counsel for the applicant that for the purpose of granting him the benefit of scheme, respondents cannot consider the promotion granted to him in fpa. 9. learned counsel for the respondents submitted that in para-4 of the ministry's letter dated 10-12-99 (annexure r-i) it is made clear that appointment/ promotion of the departmental candidate to the post of fpa may be treated as promotion. in this contexts he has taken us to annexure r-ix to the counter reply which is the service sheet of the applicant and submitted that applicant was appointed in the post of field publicity assistant on purely temporary on adhoc basis and was subsequently appointed on regular basis with effect from 14.4.1989 vide office order dated 14.4.1989 in the pay scale of rs.1350-30- 1440-40-1800-eb-50-2200. it is the contention of the learned counsel for the respondents that in terms of para-4 of the letter dated 10-12-1999 the appointment/promotion to the post of fpa may be treated as promotion and therefore since the applicant had already given two promotions prior to introduction of the scheme he is not entitled to get the benefit of the scheme. in so far as the clarification given vide letter dated 5.9.2000 is concerned, learned counsel for the respondents submitted that in para-4 it is made clear that wherever the fpas are entitled for the benefit of the scheme they shall be given the scale as per para-2 of the letter. it is, therefore, the contention of the learned counsel for the respondents that in view of the above clarification and in view of para-4 of letter dated 10-12-99 the applicant is not entitled to get the benefit. 10. considering the above facts and circumstances of the case and in view of government of india letter dated 10-12-1999 and clarification dated 5.9.2000, we find force in the contention of the learned counsel for the respondents and we are of the view that applicant is not entitled to get the benefits and that there is nothing wrong in the action of the respondents in rejecting the request of the applicant for grant of acp benefit. 11. oa being devoid of merit is dismissed with no order as to costs.
Judgment:

(Per Hon'ble Mrs. Bharati Ray, Member (J)

Heard Ms. Anuradha learned counsel for the applicant and Mrs. P. Sarada for Mr. Y. Ravindra learned counsel for the respondents. We have gone through the facts of the case and material papers placed before us.

2. The applicant was initially appointed as a Cleaner in the respondents' organisation in the year 1966 and promoted as Driver in the year 1973. He was selected as Field Publicity Assistant (F.P.A.) on 23.12.1988. It is the case of the applicant that basing on the Vth Pay Commission recommendations, the Assured Career Progression Scheme for Central Government civilian employees in all Ministries/Departments has been introduced through office memorandum No. 35034/1/97-Estt(D) dated 09.08.99. In terms of the said scheme applicant is entitled to get the benefit of the financial upgradation as he has not been given any promotion after he was directly recruited as F.P.A. in the year 1988. Applicant submitted a representation to the respondents on 1.10.2002 to grant him financial upgradation from the scale of Rs.4500-7000 to the next grade of Rs.5000-8000 as per the avenue of promotion by extending the financial upgradation benefit under the ACP scheme. The respondents vide order dated 07.11.2002 replied to the said representation stating that his representation was considered by the competent authority and since the applicant has already got two promotions in his service career, he is not eligible for any financial upgradation under the ACP scheme. Being aggrieved by the same the applicant has approached this Tribunal earlier in OA 1099/2003 for a declaration that the rejection of his representation dated 1.10.02 for grant of financial upgradation under ACP scheme by the impugned order dated 7.11.2002 is arbitrary, illegal and unconstitutional violative of Articles 14 and 16 of the Constitution of India and consequently direct the respondents to fix his pay in scale of Rs.5000-8000/- from 23.12.2000 the date on which he completed 12 years of service in scale Rs.4500-7000 and pay him arrears of salary allowances etc. The said OA was disposed of with a direction on the respondents to reconsider the request of the applicant in the light of the outcome of the issue referred to the Ministry as mentioned in para-8 of the letter dated 10.12.1999, copy of which was enclosed as Annexue -VII to the counter reply filed by the respondents in the said OA, and pass appropriate order. The Tribunal has also directed them to extend the benefit if it is found that he is entitled for the same. Respondents were given two months time from the date of receipt of a copy of the order to complete the entire exercise.

3. Pursuant to the order of the Tribunal the 3rd respondent herein vide order dated 20-04-2007 informed the applicant that his case has been examined and it is found that the applicant had already availed of two promotions prior to introduction of ACP Scheme. It is pointed out that applicant was initially appointed as Cleaner in the year 1966 and was promoted to the post of Driver in the year 1973. Subsequently he was appointed to the post of FPA on 23.12.1988. His appointment to the post of FPA was treated as promotion from the post of Driver as per recruitment rules and as outlined in Para-4 of Directorate's letter No. A-45011/18/99-Admn, dated 10.12.1999. Copy of the order is enclosed as Annexure A1 at page 12 of the OA. Being aggrieved by the same the applicant has approached this Tribunal seeking for the following relief :

4. To call for the records pertaining to Administrative Officer, Government of India, Directorate of Field Publicity, letter No. 45011/8/2001-Admn dated 07.11.2002 rejecting the applicant's representation for grant of financial upgradation under ACP scheme and the Director order F.No. 1/REC/ CC/2007-DFP(HYD) dated 20.04.2007 reiterating the previous orders inspite of the Hon'ble Tribunal's orders in OA 1099/2003 and quash the same by declaring it as arbitrary, illegal and unconstitutional violative of Articles of 14 and 16 of the Constitution of India and consequently direct the respondents to fix his pay in scale Rs.5000-8000 from 23.12.00 the date on which he completed 12 years of service in scale Rs.4500-7000 and pay him arrears of salary allowances etc. and interest at 18% for the delayed payment.

5. Respondents have contested the application by filing a counter reply. We have gone through the facts of the case and material papers placed before us.

6. It is the case of the respondents that the applicant who was initially appointed as Cleaner in 1966 got two promotions during his regular service i.e. promoted to the post of Driver in 1973 and again promoted to the post of Field Publicity Assistant i 1988 under the 50% quota for departmental promotions. In para-5 of the counter reply respondents have denied that the applicant was appointed to the post of FPA. It is the contention of the respondents that as per O.M. No. 35034/1/97-Estt.(D) dated 9.8.1999 an employee who received two prior promotions on regular basis will not be entitled for ACP scheme. They have enclosed a copy of the OM dated 9.8.1999 as Annexure-III to the counter reply. It is contended by the respondents that applicant Sri Narasimha completed 12 years of service as FPA he is not entitled for ACP scheme as he had already got two promotions from the cadre to which he was directly recruited.

7. Drawing our attention to Annexure R-I to the counter reply, Govt. of India order No. A-45011/18/99-Admn. dated 10-12-99, learned counsel for the applicant Ms. S. Anuradha submitted that in para-8 of the said letter in so far as the case of FPAs is concerned, the matter has been referred to the Ministry to seek their guidance for granting higher scale to them under ACP Scheme. She has further taken us to the communication of the department dated 5.9.2000 which is enclosed at page-12 as Annexure R-II to the reply, the contends of the letter are reproduced herein below :

"Sub:- Implementation of Assured Career Progression (ACP) Scheme in respect of FPAs in the DFP.

This is in continuation of this Directorate's letter of even number dated 10th December, 1999 regarding clarification on implementation of ACP Scheme.

2.As regards the implementation of the ACP Scheme in respect of FPAs of this Dte. it is stated that the following defined hierarchical grades were in existence on 9.8.1999, the date of implementation of the scheme.

(i)Rs. 4500-7000

(ii)Rs. 5000-8000

(iii)Rs. 5500-9000

3. According to para-7 of Annexure I of DPandT's O.M. No. 35034/1/97-Estt.(I) dated 9.8.1999 financial upgradation under the ACP Scheme shall be given to the next grade in accordance with the existing hierarchy in a cadre.

4. All the Regional Offices may, therefore, implement the Scheme in respect of FPAs, keeping in view their hierarchical grades as mentioned in para-2 above. "

8. It is the contention of the learned counsel for the applicant that in terms of clarification given by the Ministry the applicant is entitled for next higher scale as indicated therein since he was given appointment in the post of FPA. It is the contention of the learned counsel for the applicant that for the purpose of granting him the benefit of scheme, respondents cannot consider the promotion granted to him in FPA.

9. Learned counsel for the respondents submitted that in para-4 of the Ministry's letter dated 10-12-99 (Annexure R-I) it is made clear that appointment/ promotion of the departmental candidate to the post of FPA may be treated as promotion. In this contexts he has taken us to Annexure R-IX to the counter reply which is the service sheet of the applicant and submitted that applicant was appointed in the post of Field Publicity Assistant on purely temporary on adhoc basis and was subsequently appointed on regular basis with effect from 14.4.1989 vide office order dated 14.4.1989 in the pay scale of Rs.1350-30- 1440-40-1800-EB-50-2200. It is the contention of the learned counsel for the respondents that in terms of para-4 of the letter dated 10-12-1999 the appointment/promotion to the post of FPA may be treated as promotion and therefore since the applicant had already given two promotions prior to introduction of the scheme he is not entitled to get the benefit of the scheme. In so far as the clarification given vide letter dated 5.9.2000 is concerned, learned counsel for the respondents submitted that in para-4 it is made clear that wherever the FPAs are entitled for the benefit of the scheme they shall be given the scale as per para-2 of the letter. It is, therefore, the contention of the learned counsel for the respondents that in view of the above clarification and in view of para-4 of letter dated 10-12-99 the applicant is not entitled to get the benefit.

10. Considering the above facts and circumstances of the case and in view of Government of India letter dated 10-12-1999 and clarification dated 5.9.2000, we find force in the contention of the learned counsel for the respondents and we are of the view that applicant is not entitled to get the benefits and that there is nothing wrong in the action of the respondents in rejecting the request of the applicant for grant of ACP benefit.

11. OA being devoid of merit is dismissed with no order as to costs.