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IN THE GAUHATI HIGH COURT(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND

ARUNACHAL PRADESH)

WP(C) 131/2008

1. The Union of India, represented by the Secretaryto the Government of India, Ministry of Defence,New Delhi-110011.

2. The Director General of EME, Army Headquarters,New Delhi 110011.

3. The Estt. Officer, 1 Advance Base Workshop EME,C/o. 99 APO.

4. The Commandant, 1 Advance Base WorkshopEME, C/o. 99 APO.

...........Pet i t ioners

-Vs-

Shri Brij Nandan Sharma,Son of Late M. Sharma,Resident of Narangi Pathar Quarry,Near Anchalik College,P.O. Udayan Vihar,Guwahati -781026, Assam

.Respondent.

BEFORE

THE HONBLE MR. JUSTICE B.K. SHARMA

THE HONBLE MR. JUSTICE L. S. JAMIR

For the petitioner : Mr. J. Roy, Adv.Mr. M. Choudhury, Adv.

For the respondents : Mr. K.N. Choudhury, Sr. Adv.Mr. R. Dubey, Adv..

Date of hearing : 29.05.2013.

Date of judgement : 24.07.2013.

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JUDGEMENT AND ORDER (CAV)

Sharma , J

This writ petition is directed against the judgement and order

dated 9.8.2006 passed by the Central Administrative Tribunal,

Guwahati Bench, in the Original Application being OA No. 283/2005

affirmed on review vide order dated 26.6.2007 in RA No. 5/2006. By

the impugned judgement and order, the learned Tribunal has issued

direction to grant ACP to the applicant who is the respondent herein

to the next upgradation from Rs. 4000/- to Rs. 6000/- to Rs. 4500

7000/- as Master Craftsman from the date he was eligible for the

ACP. On granting of the ACP, the respondent is to get notional

benefit increasing his pensionary benefits. Be it stated here that the

respondent has already retired from service on attaining the age of

superannuation.

2. The brief facts leading to filing of the writ petition are as

follows :

3. The respondent, who was the applicant before the learned

Tribunal was a civilian employee under the petitioners i.e. the Indian

Army. He was enrolled in 1, Defence Base Workshop, EME (Corps of

Electronics and Mechanical Engineering) on 31.1.1967. Thereafter he

was absorbed as permanent civilian Pattern Maker in Defence Artisan

Staff w.e.f. 1.1.1979. He having qualified in the prescribed trade

test, was promoted from the post of Skilled Grade (Pattern Maker) to

the Highly Skilled Grade-II w.e.f. 01.07.1987 in the scale of pay of Rs.

1200 1800/-. Thereafter, he having further qualified in the

prescribed trade test, was further promoted from the post of Highly

Skilled Grade-II to Highly Skilled Grade-I w.e.f. 10.8.1996 in the scale

of pay of Rs. 1320 2040/-. The respondent belonging to Grade-C

Industrial category retired from service on attaining the age of

superannuation. At that point of time, he was in the pay scale of Rs.

4000 6000/- (revised) of Highly Skilled Grade-I.

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4. When the petitioner was absorbed under the petitioners asSkilled Grade, the Defence Artisan Staff in the Industrial Trade in

various Defence establishments comprised of the following Grade

structures :-

i. Skilled.

ii. Highly Skilled II

iii) Highly Skilled Iiv) Master Craftsman.

5. A Skilled Grade Artisan was eligible to be promoted to the

Highly Skilled Grade-II subject to passing the prescribed trade test.

Similarly, the Highly Skilled Grade-II was eligible for promotion to

Highly Skilled Grade-I on passing the prescribed trade test. An

employee either working as Skilled of Highly Skilled-II or Highly

Skilled Grade-I or Master Craftsman, in the general term is known as

Tradesman.

6. The post of Master Craftsman (MCM) in the Defence

Establishment was created in the year 1982 vide Ministry of Defence

letter dated 21.09.1982.The letter also laid down the criteria for

promotion to the most of Master Craftsman which inter aliaprovided

that the number of posts of MCM in each trade would be upto 10% of

the total number of sanctioned posts in Highly Skilled Grade-I in each

organisation. The worker should have rendered a total service of at-

least 10(ten) years continuously in the same or allied trade in the

Skilled Grade, out of which 3 (three) years service should be in the

Highly Skilled Grade-I. It was also provided that the post would be

personal to the holders and would lapse with the retirement /

wasting of the individuals. The letter also further provided that each

Defence Establishment should constitute a Departmental Selection

Committee for the purpose of selection applying the yardsticks and

parameters laid down in the letter.

7. Pursuant to the Fifth Central Pay Commission

recommendation, the Government of India in the Ministry of

Personnel and Public Grievances and Pension vide its OM dated

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09.08.1999 had notified the Assured Career Progression for theCentral Govt. civilian employees. As per the said OM, the ACP

scheme is applicable to Group B, Group-C and Group-D categories of

the service / posts to mitigate the hardship of acute stagnation

either in a cadre or in a isolated post. The Government of India

keeping in view all relevant facts decided to grant two financial

upgradations as recommended by the Fifth CPC and also in

accordance with the agreed settlement dated 11.09.1997 on

completion of 12 years and 24 years of regular service respectively

subject to the conditions stipulated therein. As per the said OM, the

ACP Scheme should in no case affect the normal (regular)

promotional avenues available on the basis of vacancies and vacancy

based regular promotion, as distinct from financial upgradation under

the SCP Scheme and that the same would continue to be granted

after due screening by a regular DPC as per the relevant rules /

guidelines. The salient conditions for grant of the benefits under the

ACP scheme are as follows :-

1. The ACP Scheme envi sages mer ely placement in t hehigher pay scale /gra nt of f inancial benef i t s (t hrough

f inancial upgra dat ion) only t o t he Government

servant concerned on personal basis and shal l ,

therefore, nei ther amount to func t ional / regular

promot i on nor would requi re creat ion of new post s

f or t he purpose.

2. The f inancial benefi t s under t he ACP Scheme shal l begranted f rom the date of complet ion of the

el igib i l i t y per iod pr escri bed under t he ACP Scheme or

from the date of issue of these instruct ions

whichever is ear l ier .

3. The f i rs t f inancial upgradat ion under the ACPScheme shal l b e al lowed af t er 12 year s of regular

serv i ce and t he second upgradat ion af t er 12 years of

regular serv ice f rom t he dat e of t he f i r st f inanc ia lupgradat ion subjec t to fu l f i l lment of prescr ibed

condi t ion.

4. Tw o f inancial upgrad at ions under t he ACP Scheme int he ent i r e Government serv i ce car eer of an employee

shal l be counted against regular promot ions

(inc luding in-s i tu promot ion and fast- t rack

promot i on t hrough l imi t ed depart ment a l compet i t i ve

examinat ion) avai led f rom t he grade in w hich an

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employee was appointed as a direct recrui t . Thisshal l mean that t wo f inancia l upgradat ions under t he

ACP Scheme shal l be avai lable only if no regular

pr omot i ons duri ng t he prescribed per iods (12 and 24

years) have been avai led by an employee. I f an

employee has already got one regular p romot ion, he

shal l qual i fy for the second f inancial upgradat ion

only on complet ion of 24 year s of r egular serv i ce

under t he ACP Scheme. In case t wo p r ior pr omot ions

on regular ba sis have alr eady been receiv ed by an

employ ee, no benef i t under t he ACP Scheme shal l

accrue t o him.

5. Residency periods (regular serv ice) for grant ofbenefi t s under t he ACP Scheme shal l be count ed f orm

t he gra de in which an employee was appoint ed as a

d i rect recru i t .

6. Ful f i l l ment of normal pr omot i on norms (bench-mark,depar t menta l examinat ion, senior i t y -cum-f i t ness in

t he case of Group D employees, et c) f or grant of

f inancial upgradat ions, per f ormance of such dut ies

as are entrusted to the employees together wi thret ent i on of old designat ions,f i nancial upgradat ions

as personal t o he incumbent f or t he st at ed purposes

and r est r ict ion of t he ACP Scheme for f inancial a nd

certain other benefi ts (House Building Advance,

al lotment of Government accommodat ions,

advances, et c) only wi t hout confer r i ng any pr iv i leges

re la ted to higher s tatus (e.g. inv i ta t ion to

ceremonial funct ions, deputat ion to higher posts,

et c) shal l be ensured f or grant of b enef i t s under t he

ACP Scheme.

7. Financial upgradation under the Scheme shal l begiven t o the next higher grade in accordance wi t h

t he exist i ng hierar chy in a cadr e/cat egory of post s

wi t hout creat ing new post s f or t he purpose.

8. Besides the aforesaid conditions, there are other conditions

which are required to be fulfilled for grant of ACP as laid down in the

said OM dated 09.08.1999 (Annexure-II). Certain clarifications was

issued in respect of the said OM dated 09.08.1999 vide OM dated

10.2.2000.

9. Pursuant to the introduction of the ACP scheme and the

subsequent clarifications, the authority in the Department of EME

had considered the said scheme in its entirety and thereafter the

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Director of EME issued a Standing Operating Procedure (SOP) videletter dated 15.5.2002 for implementation of the ACP Scheme duly

taking note of the conditions stipulated for financial upgradation

under the ACP Scheme. The said SOP also laid down the basic

conditions including the following :-

( i ) Ful f i l l ment of normal pr omot i on norms i .e. benchmar k as per ACR grading, senior i t y cum f i t ness for

Group D employees or Trade Test for Industr ia lemploy ees is a must .

( i i ) Employees who have completed el i g ibi l i t y serv ice ason 09.08.1999 but r et i red pr ior t o f i rs t meet ing of

Screening Committee may also be considered for

gra nt of benef it s under ACPS if assessment is based

on ACRs. T he same is not possib le i n cases where

passing of t rade t est / w r i t t en examinat ion et c . is

mandat ory f or p r omot i on, as assessment based on

such tests is not possible after the date of

superannuat ion.

10. Pursuant to the Fifth CPC recommendation, recommending for

restructuring of the cadre of Artisan staff in the Defence

establishment, the Government conveyed its sanction for the said

restructuring of the cadre of Artisan Staff vide its order dated

20.05.2003, the relevant extract of which are as follows :-

2. The grade st ruct ure in t he indust r i a l as wel l as in t henon-indust r ia l t rades, w herever al ready avai lab le

and t he pay scales of t he Defence ar t isan st af f shal l

st and modi f ied w .e. f . 1.1.96 as under : -

(i ) Ski ll ed Rs. 3050 4590 .

(i i ) Highl y Ski ll ed Rs. 400 6000.

(HS-I + HS-II )

( i i i ) Mast er Cra f t sman Rs. 4500-7000.

3.(a) Wherever t he grade st ruct ure in the Indust r i a l as

wel l as in the Non-Industr ia l trades is already

ex ist ing in t he rat ion of 65 : 20 : 15, in t he ers tw hi le

Ski l l ed : HS II : HS-I, t he mer ger of HS II and HS-I

shal l be t reated to have come into ef fec t f rom

1.1.96 and t he grad e st ruct ure of Ski l l ed and Highly

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Ski l l ed categori es shal l be in t he rat io of 65 : 35(20+15).

(b) The post of Mast er Craf t sman shal l not be part oft he hierar chy and t he placement in t h is grade wi l l

not be t reat ed as pr omot i on f or Highly Ski l led Gra de

ei t her under normal pr omot i on rules or under ACP

Scheme.

--------------------------------------

-------------------------------------

4.( iv) The post of Mast er Craf t sman shal l cont inue to be

consid ered a s Highly Ski l led Grade f or t he purpose of

pr omot ion t o t he Gr ade of Char geman II (Rs. 5000-

8000).

(v ) The benef i t of t he f i rs t and second ACP t o t he ski l l edworkers wi l l be as per the orders issued by the

DOP&T under thei r OM dated 9.8.1999 and

subsequent clar i f icat ions issued on t he subject .

11. Pursuant to the said order dated 20.5.2003, the Ministry of

Defence, Government of India merged the 2 (two) artisan cadres

namely Skilled Grade-II and Highly Skilled Grade-I in a single grade of

Highly Skilled with effect from 01.01.1996 and the next higher posts

for which they became eligible to be considered for promotion was

that of Chargeman II, which falls in the supervisory grade, subject to

fulfillment of the norms prescribed.

12. The recruitment and appointment to the post of Chargeman

II is covered by the Corps of Electrical and Mechanical Engineers

Chargeman I (Part-I and Part-II cadre) and Chargeman II (Part-I

and Part-II cadre) Recruitment Rules, 2002, under which 66 & 2/3%

posts of Chargeman II are to be filled up by promotion and the

following categories of employees are eligible to be considered for

promotion :-

( i ) Tr adesman (Rs. 4000-6000) wi t h not less t han eight yyears service in the grade, subject to passing

necessar y t ra de t est .

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(i i ) Mast er Cr af t sman (Rs. 4500 7000 ) who hav e passed

Superv isory t est wi l l also be consider ed as per t hei r

t ra desmen senior i t y wi t h not less t han cont i nued 8

years serv i ce of t radesman and Mast er Craf t sman.

Earlier their conditions of service were governed by the Corps

of Electrical and Mechanical Engineers Recruitment Rules, 1977.

13. As stated above, the applicant/respondent retired form

service on 30.09.2003 in the pay scale of Rs. 4000-6000/- as Highly

Skilled Grade-I, which had become Highly Skilled Grade- w.e.f.

1.1.1996, subsequent to the aforementioned order dated 20.5.2003

merging the two cadres, namely, Highly Skilled Grade-II and Highly

Skilled Grade-I. It will be pertinent to mention here that the

recommendations for promotion of the respondent to Master

Craftsman were forwarded to the higher authorities during 1999,

2000 and 2001 but due to non-availability of vacancy for Pattern

Maker for Master Craftsman, the respondent could not be promoted.

Pursuant to his retirement from service he has already received all

pensionary benefits commensurating his position as Highly Skilled

Grade. However, subsequent to his such retirement, he submitted

representation dated 14.5.2004 and 20.9.2004 contending inter alia

that in view of the particular clause in the ACP scheme dated

20.5.2003, he was entitled to get financial upgradation to the scale

of pay of Master Craftsman with appropriate fixation of pensionary

benefits. According to the petitioners, though the respondent had

contended that his juniors were promoted but he failed to cite any

example. During the course of hearing of the instant writ petition

also, on being asked as to whether any junior to the respondent was

promoted, no example could be cited.

14. It is in the aforesaid back drop, the respondent had

approached the Tribunal by filing OA No. 104/2005 which was

disposed of by order dated 13.5.2005 at the admission stage itself

directing the respondent to make representation to the authority and

consideration of the said representation in accordance with law.

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15. Pursuant to the aforesaid order dated 13.5.2005 passed by the

Tribunal in OA No. 104/2005, the representation submitted by the

respondent on 30.5.2005 was considered by the authority and

rejected by the impugned order dated 17.9.2005 (Annexue-10). Being

aggrieved, the respondent once again approached the Tribunal by

filing another OAregistered and numbered as OA No. 283/2005. The

said OA has been allowed with the following directions :-

7. In t he conspect us f act sand cir cumst ances, we ar e oft he considered v iew t hat t he appl icant cannot be

avai led the second promot ion ad therefore the

imp ugned order dat ed 17.9.05 has not b een issued

under i n good spir i t of l aw and t o be set a side. T he

appl icant is ent i t led t o get t he second ACP which is

on the normal basis to t he next up gradat ion f r om

Rs. 4000-6000/ - t o Rs. 4500-7000/ - as Mast er

Cra f t sman f rom t he date he is el ig ible f or ACP. We

make i t c lear t hat t he appl icant is only ent i t led t o

get not ional benef i t but t hat w i l l have an ef f ect on

his pensionary benef i t s, s ince he has already r et i r ed.

The re l ie f shal l be granted to the appl icant

f or t hwi t h in any case wi t h in 3 mont hs f rom t he dat e

of receip t of t h is order .

OA is al lowed. In t he cir cumst ances no order as t o

costs.

16. Being aggrieved by the said direction, the petitioners filed an

application for review of the said judgement under Section22(f) of

the Administrative Tribunal Act, 1985. The said application was

registered and numbered as RA 5/2006 but the same having been

rejected by judgement and order dated 26.6.2007, the petitioners

have filed the instant writ petition.

17. While admitting the writ petition, this Court was inclined to

pass an interim order to the effect that the payment as directed by

the learned Tribunal would be subject to the outcome of the writ

petition.

18. We have heard Mr. J. Roy, learned counsel along with Mr. M.

Choudhury, learned counsel for the petitioners. We have also heard

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Mr. K.N. Choudhury, learned senior counsel assisted by Mr. R. Dubey,learned counsel for the applicant/respondent. We have also

considered the entire materials on record. After giving our anxious

consideration to the submissions and the materials on record, our

findings and conclusions are recorded below :

19. In the original application filed before the Tribunal, the prayer

made was as follows:

8. RELIEFS SOUGHT FOR :

Under the fact sand circumstances stated

above, the appl icant humbly prays that Your

Lordships be pleased t o admit t his appl i cat ion and

not ice be issued t o t he respondents t o show cause as

t o why t he re l ie fs sought f or by t he applicant shal l

not be grant ed, cal l f or t he records of t he case and

on perusal of the records and after hearing the

par t ies on t he cause or causes t hat may be shown, bepleased to grant t he fo l lowing re l ie fs : -

8.1 Set -aside/q uash t he impugned Or der da t ed17.09. 2005 pa ssed by t he Respondent No.4.

8.2 Dir ect t he Respondent aut hori t ies to considert he case of t he appl icant f or promot i on t o the

post of Chargeman wi t h ef f ect f rom t he dat e

of implementation of the ACP Scheme on

not i onal basis.

8.3 Direct the Respondent authori t ies to makepayment of al l the pecuniary dues of the

appl icant inc lud ing arrear salary af ter

promot ing the appl icant on not ional basis

f rom t he date of implementat ion of t he ACP

Scheme.

8.4 Direct the Respondent authori t ies to reviseand make payment a l l t he pensionary benef i t s

o f the pe t i t i oner in te rms of the no ta t i on

promot ion.

8.5 Cost of t he appl i cat ion.

8.6 Any other re l ie f or re l ie fs to which theappl icant is ent i t led to, under t he f ac ts and

cir cumst ances of t he case as may be deemed

f i t and proper by t he Hon b le Tr ibunal .

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20. If we go by the aforesaid prayer, it is seen that the applicant

i.e. the respondent herein had aspired for promotion to the post of

chargeman with effect from the date of implementation of the ACP

scheme on notional basis, There was no prayer for promotion to the

post of MCN as has been provided by the learned Tribunal. As to what

is the direction contained in the impugned judgment of the Tribunal

has been noted above. As per the said direction, the applicant is

entitled get second ACP on notional basis as Muster craftsman from

the date he became eligible for ACP. However, the same was not the

prayer made in the O.A. As noted above, the prayer was for

promotion to the post of chargemen.

21. It will be pertinent to refer at this stage the specific

averments made by the applicant in his O.A. in respect of his claim

for promotion to the post of chargeman.

4.9. That t he afor esaid represent at ions submi t t edby t he appl icant were deal t wi t h by t he Respondent

author i t ies v ide le t ters dated 29/05/2004 and

19/10/ 2004. T he Respondent aut hori t ies had issued

both t hese let t ers wi t hout any appl icat ion mind wi t h

an absolut e mechanical app r oach. The Respondent s

author i t ies fa i led to cons ider the fac t that the

appl icant was ent i t led for pr omot ion way back in the

year 1999. The Respondent authori t ies simply

re j ect ed t he aforesaid represent at ions submi t t ed by

t he appl icant only on t he ground t hat t he appl icant

had never worked as a Master Craf tsman to be

considered f or t he next grade of promot i on i .e . t he

Post of Chargeman. The Respondent authori t ies

fa i l ed t o take note o f t he fac t t hat t he app l i can t was

wor king in the grade of highly ski l led i n t he pay scale

of Rs. 4000- 6000/ -. As such, he wa s ver y much in t he

feeder cadre for being promoted to the post of

Char geman. Needless t o ment ion here t hat severa l

persons who were placed much below t he appl icant

had been arb i t rar i l y promoted by t he Respondent

aut hori t ies by superseding t he appl i cant .

4.10. That being highly aggri eved and di ssat is f ied

wi t h the repeat ed non-consider at ion of t he case of

the appl icant for being promoted to the post of

Char geman on a nat ional b asis by t he respondent s,

t he appl icant was lef t wi t h no ot her opt ion but t o

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approach t h is Honb le Tr ibunal by way of anOriginal Appl ication being OA No. 104 of

2005.

5.2. For t hat t he Respondent s aut hori t ies have

f a i led t o consider t he fac t t hat t he name of t he

appl icant was approved for the post of Master

Cra f t sman way back in t he year 1999 but could not

be placed in t he said post f or w ant of vacancy and

ef f or t s were made to create a new post of Mast er

Craf tsman for accommodat ing the appl icant. The

post of Mast er Cra f t sman being kept in t he same

hierar chy a s t hat of Highly Ski l l ed, as such t he

pet i t ioner in t erms of t he Assured Car eer Progression

Scheme had alr eady qual i f ied befor e his ret i r ement

f or being promoted t o the post of Chargeman, which

is the next grade in the hierarchy. As such, the

appl icant is ent i t led to be promoted in terms of t he

ACP Scheme even af t er his ret ir ement on not ional

basis wi t h al l consequent i a l benef i t s t hereof .

5.3. For t hat t he Respondent aut hori t ies haveacted in a manner cont r ary t o al l t he set t led and

establ ished princ iples of serv ice jur isprudence in

refus ing to promote the appl icant and promot ing

other persons who were much junior to the

appl icant . Such act ion on the par t of t he respondent

author i t ies is v iola t ive of Art ic les 14 and 16 of t he

Const i t ut ion of India. Al t hough an employee cannot

c la im promot ion as a mat t er of r ight , however , as

has been held by t he Hon ble Supr eme Court , t he

r ight to be cons idered for promot ion is a

fundamenta l r ight . In v iew of the fac ts andcircumst ances t hat have been nar ra t ed hereinabove,

i t was incumbent upon the r espondent s to consider

t he case of t he Appl icant in t he l ight of t he pol icy

decis ion of the Govt. of India. Moreover, the

f undament a l r ight guaranteed t o t he Appl icant under

Art ic le 16 of t he Const i t u t i on of Ind ia was inf r inged

t he moment his immediate j unior w as promot ed.

5.6. For t hat t he claim of t he appl i cant in OA No.

104 of 2005was that h is candidat ure was al ready

forwarded for the post of Master Craf tsman way

back in 1999, however , t he same did not ma t eria l ize

f or w ant of vacancy. However, af t er t he ACP Scheme

was implemented, the appl icant is f i t to be

considered for promot i on not i onal ly t o t he post of

Chargeman, which is the next higher post in the

hierarchy .

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5.8. For tha t t he Respondent No.4 whi le issuing t heimpugned Order dated 17/09/2005 completely

mis inter pr et ed the Ord er dat ed 13/05/ 2005 passed

by his Honbl e Tr ibunal i n OA No. 104 of 2005. The

Respondent No.4 under some miss concept ion of f act

as wel l as of law re j ec ted t he case of t he appl icant

and considered the case of the appl icant for

select ion to the post of Master Craf tsman only,

which was never t he case.

22. In the written statement that was filed by the respondent in

the Tribunal it was contended that the applicant was not entitled to

get promotion to the post of Muster craftsman. Referring to his two

promotions he had already earned, it was also contended that the

ACP scheme was implemented in 1999 and not in 2003 as was stated

by the applicant. As noted above, the applicant was first promoted

from skilled to HS Grade-II on 1.1.1987 and from HS Grade-II to HS

Grade-I on 10.8.1996 i.e. before implementation of the ACP scheme.

Thus it was contended by the respondents in their Written Statement

that the applicant having already earned two promotions he was not

entitled to get further promotions under ACP scheme. It was also

contended that for promotion to the post of chargeman, the

applicant was to earn his eligibility and that it was not automatic.

23. After the impugned judgment and order passed by the learned

Tribunal, the respondents i.e. the petitioners filed the review

application being R.A. No. 5/2006. In the review application, it was

specifically contended that there was error apparent on the face of

the record and that even for promotion to the post of chargeman,

which in fact was the prayer of the applicant, the normal rules of

promotion was to be followed and that the applicant could not have

claimed automatic promotion. However the learned Tribunal by its

impugned judgement and order dated 26.6.2007 rejected the said

review application on the ground of non-availability of any ground for

review of the earlier judgement and order.

24. Annexure-4 is the Office Memorandum dated 09.08.1999 on

the ACP Scheme. As laid down in the said OM, the incumbents under

the said OM are entitled to two financial upgradations as

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recommended by the Fifth CPC on completion of 12 years and 24years, which however, would be subject to the conditions laid down

in Annexure-1 to the said OM. As per the conditions for grant of

benefits under the ACP Scheme, the financial benefits under the said

Scheme is to be granted from the date of completion of the eligibility

period from the date of issue of the instructions, whichever is later.

Fulfillment of normal promotion norms i.e. bench mark,

departmental examination, seniority-cum-fitness in the case of Group

D employees etc for grant of financial upgradations, performance of

such duties as are entrusted to the employees together with

retention of old designations was also emphasized. Clause 6 and 7 of

the said OM are quoted below :

6. SCREENING COMMIT TEE

6.1 A depar t mental Screening Commit t ee shal l be

const i t ut ed f or t he purpose of pr ocessing the cases f or

grant of benefi t s under t he ACP Scheme.

6.2 T he compo sit ion of t he Screening Commit t ee

shal l be t he same as t hat of t he DPC pr escri bed under t he

relevant Recrui t ment/ Serv ice Rules f or r egular pr omot i on

t o the higher grad e to which f inancial up-gra dat ion is t o be

granted. However, in cases where DPC as per the

pr escribed r ules is headed by t he Chairman/Member of t he

UPSC, t he Screening Commi t t ee under t he ACP Scheme

shal l , i nst ead, be headed by t he Secret ar y or a n off icer of

equivalent r ank of t he concerned Minist r y / Depart ment . In

respect of isolat ed post s, t he composi t ion of t he ScreeningCommi t t ee (wi t h modi f i cat ion as not ed above, i f requi red)

shal l be t he same as t hat of t he DPC f or pr omot ion t o

analogous grade in t hat Minist ry /Depar t ment .

6.3 In ord er t o pr event operat ion of t he ACP Scheme

from resul t ing in to undue st ra in on the admin is t ra t ive

machinery , t he Screening Commit t ee shal l f ol low a t ime-

schedule and meet t wi ce in a f inancial year pr efer ably in

t he f i r st week of Januar y and July f or advance processing

of t he cases. Accord ingly, cases mat uring duri ng the f i r st -

hal f (Apr i l -September) of a par t icular f inanc ia l year f orgrant of benef i t s under t he ACP Scheme shal l be t aken up

f or considera t ion by t he Screening Commit t ee meet i ng in

t he f i rs t week of January of t he prev ious f inanc ia l year .

Simi l ar ly , t he Screening Commit t ee meet ing in t he f i r st

week of July of any f inancial y ear shal l pr ocess t he cases

t hat would be mat uring during t he secondhal f (October-

March) of the same f inancial year. For example, the

Screening Commit t ee meet ing in t he f i r st week of January,

1999 would pr ocess t he cases t hat w ould at t ain mat uri t y

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duri ng t he period Apri l 1, 1999 t o Sept ember 30, 1999 andt he Screening Commit t ee meet ing in t he f i r st week of July,

1999 would pr ocess the cases t hat would mat ure duri ng the

peri od October 1, 1999 t o Mar ch 31, 2000.

6.4 T o make t he Scheme operat ional , t he Cadr e

Contr ol l ing Aut hori t ies shal l const i t ut e t he f i rs t Screening

Commi t t ee of t he curr ent f inanc ia l year wi t h in a month

f rom t he dat e of issue of t hese inst ruct ions t o consider t he

cases t hat have alr eady mat ured or w ould be mat uring up

t o Mar ch 31, 2000 f or grant of b enef i t s under t he ACP

Scheme. T he next Screening Commit t ee shal l be const i t ut edas per t he t ime-schedule suggest ed above.

7. Ministr ies/Depar t ments ar e advised to explore t he

possibi l i ty of effect ing savings so as to minimize the

addi t iona l f inancia l commi t ment t hat in t roduct ion of t he

ACP Scheme may ent ai l.

25. The aforesaid Annexure-4 OM dated 9.8.1999 was followed by

Annexure-5 OM dated 10.2.2000, by which certain clarifications had

been issued. The relevant portions of the said clarifications are

quoted below :-

F. No. 35034/ 1/ 97-Est t (D)(Vol.IV)Government of India,

Ministr y of Personnel, Publ i c Gr ieva nces and Pension

(Depart ment of Personnel a nd Tr aining)

New Delhi, 110001

Februar y 10,2000

OFFICE MEMORANDUM

Subj ect : Assured car eer Pr ogression Scheme f or t he

Cent r al Gover nment Civ il ia n Empl oyees

Clar i f icat ions regardi ng.

The unders igned is dir ect ed t o invi t e ref erence to

the Department of Personnel and Training Off ice

Memorandum of even number dat ed August 9, 1999

r egar di ng t he Assur ed Car eer Progression Scheme

(ACPS). Consequent upon int r oduct ion of t he Scheme,

c lar i f icat ions have been sought by v ar ious Minist r ies

/ Dep ar t ment s about cer t a in i ssues i n connect i on w i t h

imp lement at ion of t he ACPS. The doubt s r aised by

var ious quart ers have been duly exami ned and point -

wi se clar i f icat ions have accord ingly been indicat ed

in t he Annexur e.

2., The ACP scheme should str ict ly b e

implemented in keeping with the Department of

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Personnel and Tr aini ng Of f ice Memora ndum of evennumber dated August 9, 1999 read with the

af oresaid clar i f icat ions (Annexure), cases where t he

ACP Scheme has al r eady been impl ement ed shall be

rev iewed / r ect i f ied i f t he same are not f ound as t o

be in accordance wit h t he scheme/c lar i f icat ions.

3. Al l Ministr ies / Depart ments may give wi de

c i rcu la t ion to th is c lar i f i catory ins t ruc t ions for

general guidance and appropriate act ion in the

ma t t e r .

4. Hindi vers ion would f ol low.

( K.K. Jha )

Dir ect or (Est abl i shment ).

26. Consolidating the instructions in reference to the ACP,

Annexure-C guidelines was issued which is dated 15.5.2002. As per

the said guidelines, the fulfillment of normal promotion norms i.e.

bench mark as per ACR grading, seniority-cum-fitness, trade test for

industrial employees is a must. Laying down the hierarchy in the

matter of promotion it was laid down as follows :-

8. HIERARCHY

(a) Group C Non-indust r i a l cent ra l ly cont rol l ed

cat egori es as giv en in Annexur e-I t o t his SOP ar e not

requi red t o appear f or any test and the i r f inanc ia l

upgradat ion wi l l be considered by Departmental

Screening Commit t ee t o be conduct ed by EME

Recordi ng af t er assessment of t hei r sui t abi l i t y .

(b) Group D Non-indust r i a l local ly cont r ol led

cat egori es ar e giv en in Annexure-II wi l l be given t he

f inancial upgrada t ion by publ i shing DO par t - II af t er

approval by the Uni t Promot ion Commit tee

conducted at uni t level af ter assessing their

su i tab i l i t y .

Group C & D Indust r ial Personnel

(Local ly / Unit cont r ol led ) as given Annexure-III wi l l b egiven the f inancial upgradat ion after passing the

t rade tes t , as per RPs and af ter approval by

Departmental Screening Committee after assessing

t hei r su i tab i l i t y .

(d) Select ion grade or in-si t u pr omot i on which is

not a par t of Hierarchy shal l not count as promot i on

e.g. Mast er Craf t sman is not par t of h ierar chy f or

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employ ees in t he Gde I. However , t he post of MCM ispersonal t o t he indiv idual i n t he pay scale of Rs.

7000/ - and is not t o be t r eated as promot ion v ide

Min. of Def. let t er No. 1(2)/80/ D(Civ. I) dat ed 21 Sep

1982 and fur t her amendment s. In this case, i f an

indi vi dual has been elevat ed as MCM and has passed

superv isor t est and is el ig ible f or f i r st or second in

t he scale of Rs. 5000-8000, his pay i s t o be f ix ed as

clar i f ied vi de ser.2 of DOP/OM No. 35034/ 1/97/ Est t

Dy(Vol IV) dat ed 10 Feb 2000.

(e) Higher pay scale grant ed wi t hout any

condi t ion not to count as promot ion the case of

Dr aught sman t he pay scale of Dr aughtsman Gde-I

wer e upgraded t o Rs. 5000-8000 and Rs. 5500 -9000

inst ead of equivalent scale of Rs. 4500-7000.

27. As regard the trade test it was laid down as follows :

12. TRADE TEST

(a) Empl oyees who are el i gible for ACP on

09.8 .1000 but qua l i f i ed the t rade tes t in f i rs t

a t t empt af t er 09.8.1999 t o be al lowed benef i t s of

ACP f rom 09.8.1 999 and not f r om dat e of passing

t rade test .

(b) Those who qual i f y in subsequent at t empts t o

be al l owed benef i t s of ACP f rom da t e of pa ssing

t rade test .

(c) No benef i t f rom 09.8.99 t o t hose who

appeared and f a i led in t rade t est before 09.8.999 or

not appeared at a l l or not passed the t rade test .

(d) ACP Scheme not linked w it h vacancy. ACP t o be

implemented w i t hout wai t ing for i ssue of rev ised

PETITIONER & a s per ex ist ing RPs.

(e) Hence t rade t est of Indust r i a l employees

completing 12 or 24 years service can be held

i r r espect ive of rat io / zone of considerat ion as perDepart ment a l r egulat ions i f any.

( f ) The t rade t est is of t wo t ypes, as under : -

( i ) The t rade t est f rom Labour t o Mat e,

mat e t o Ski l l ed, Ski l l ed t o HS-II and HS-II

t o HS-I.

( i i ) Superv i sor s t est for promot i on f rom

t ra desman t o Chargeman.

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(g) Screening Commit t ee f or t ra de t est wi l l meet

t wi ce in a year (i .e.) in t he month of Jan and July.

Accordingly superv i sory t rad e t est is to be conducted

in May/Nov. El igib i l i t y f or t he superv isor y t rade t est

wi l l b e as under :-

( i ) EME Record wi l l c i rculat e t he l is t of

persons who were in t he consider at ion

zone f or pr omot i on and have not cleared

t he t rade test .

( i i ) The Uni t wi l l f orwar d t he name of t he

indiv i duals who are l ikely t o complet e

12 year s of serv ice and ar e due for ACP

t o t he respect i ve Base Workshop w here

t he t r ade test is to be conducted.

( i i i ) a l l other t rade t est wherever appl icab le

for ACP wi l l be conducted by the

respect i ve Uni t /Base Workshop.

28. Learned counsel for the parties have exclusively referred to

the Annexure-7 circular letter dated 20.5.2003 to sustain their points

of arguments. The said circular letter is on the subject of

restructuring of cadre of Artisan staff in Defence Establishments in

modification of the recommendations of Fifth CPC. For a ready

reference, the said circular letter dated 20.5.2003 is quoted below :

No. 11(1)/20 02/ D(Civ .1)Government of India

Minist ry of Defence.

New Delhi, t he 20t hMay, 2003.

To

The Chief of Army St af f

The Chief of Air St af f

The Chief of Naval St af f

The DGOF& al l t he Heads of Int er Serv ices Or ganisati ons.

Subj ect : Rest ruct ur ing of Cadr e of Art isan St af f in

Defence Establ ishments in modi f icat ion of

recommendat ions of 5t hCPC.

Sir,

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The mat t er r egard rest ruc tur ing of Cadre of Art isanStaff in Defence Establ ishments has been under

consider at ion of t he Government f or qui t e some t ime. Now

in par t ia l modi f i cat ion of t he recommendat ions of t he Vt h

CPC made in par as 54.16-18 and 54.29 of i t s report , I am

dir ect ed t o convey t he sanct ion of t he President as under

2. The grade st ruct ure in t he indust r i a l as wel l as in t he

non-indust r i a l t rades, w herever al ready avai lab le and t he

pay-scales of t he Defence art isan st af f shal l sand modi f ied

w.e. f . 1.1.196 as under : -

(i ) Ski l led : Rs. 3050-4590 .

(i i ) Highly Ski l led : Rs. 4000-6000 .

(HS-I + HS-II )

( i i i ) Mast er Cra f t sman : Rs. 4500-7000.

3. (a) Wherever t he grade st ruct ure in t he Indust r i a l

as well as in the Non-Industrial trades is

a l ready ex ist ing in t he rat ion of 65:20:15, in

t he erst whi le Ski l led : HS-II : HS-I, t he mergerof HS-II and HS-I shal l be t r eat ed t o have come

into ef fec t f rom 1.1.96 and the grade

st r uct ure of Ski l led and Highly Ski l l ed

cat egories shal l be in t he rat io of 65: 35 (20 +

15).

(b) The post of Maser Cra f t sman shal l not be par to f t he hierar chy and t he placement in t h is

grade wi l l not be t reated as promot ion for

Highly Ski l led Grade ei ther under normal

pr omot ion r ules or under ACP Scheme.

(c) The select ion f rom Highly Ski l l ed grade t o t hegrade of t he Mast er Cra f t sman shal l be 10% of

Highly Ski l led Cadr e (i .e. 10% of 35% of t he

t ot al ) and t he placement in t his grade shal l be

w.e. f . 1.1.96 and upto t he date of t he issue of

t hese or ders.

(d) The placement of t he indiv iduals in t he post sresu l t ing f rom the res t ruc tur ing and rat io

revis ion, shal l be made w.e. f . 1.1.96, minre laxat ion of t he condi t ions, i f any i .e . t r ade

t est etc. , a s one t ime measure.

(e) The above provisions may also be madeappl i cable, as a special case, in rela xat ion of

the exist ing rules/ instruct ions to the

employees who have ei ther ret i red or died

a f t e r 1 .1.96.

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4. ( i ) From t he dat e of issue of t hese order s, al l t het ra des classi f ied as Ski l l ed (inc luding lef t out

t ra des) in t he Indust r i a l as wel l a s in t he non-

Indust r i a l Est t s. Shal l now be modi f ied in t he

f o l lowing int er-grade rat io : -

1. Ski l l ed (Rs. 3050 -4590) : 45%

2. Highly Ski l led (Rs. 4000-6000 ): 55%

3. Master Craftsman (Rs. 4500-7000):25% of

t he Highly Ski l led Gr ade post s wi l l b e placed in

t he grade of t he Mast er Craf t sman. They wi l l ,

however , not be a part of t he hierar chy .

( i i ) The above-ment ioned inter-grade rat io shal lbe worked out based on the

sanct i oned/ aut horized st rengt h.

( i i i ) Since t he post of Mast er Craf t sman is not par tof t he hierar chy, t he placement i n this gra de

shal l not be t reat ed as promot ion f or High ly

Ski l l ed Gra de ei t her under normal pr omot i on

rul es or under ACP Scheme.

( iv ) The post of Mast er Cra f t sman shal l cont i nue t obe consider ed as highly ski l led grade f or t he

purpose of promot ion to the grade of

Char geman-II (Rs. 5000-8000).

(v ) The benef i t of t he f i r st and second ACP t o t heski l l ed wor kers wi l l be as per t he orders issued

by t he DOP&T under t hei r OM dat ed 9.8.99

and subsequent clari f ications issued on the

subject .

(v i ) Where t here is di rect recru i t ment at t he leve lof HS-I/HS-II in Def ence Est t s., t he number of

Master Craftsmen (not exceeding 25% of

Highly Ski l led) may be decided consider ing t he

funct ional requirements by the concerned

administ ra t ive Sect ions in t he Minist r y of

Defence in consul t at ion wi t h t hei r concerned

int egra t ed Finance.

(v i i ) The placement of t he indiv iduals in t he post sresul t ing from the above restructur ing andrat io rev ision shal l be made f rom t he dat e of

issue of the orders , in re laxat ion of the

condi t ions, i f any, as one t ime measure.

(v i i i ) The procedure f or select ion to t he grade ofMaster Craf tsman shal l be as laid down in

par a- 2 & 3 of Ministr y of Defence let t er No.

1(2)/8 0/D(Civ. I ) dat ed 21stSept ember, 1982 ,

as amended wi th the except ion that the

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number Mast er Cra f t smen in each tr ade shal lbe upto 25% of t he t ot al number of sanct i oned

posts in the Highly Ski l led grade in each

organisat ion inst ead of 10% as was provid ed

f or in para-2( i ) of t he af oresaid Minist r y of

Defence let t er.

( i x ) The ex is t ing recru i tment ru les for theTr adesmen may be amended accordi ngly.

5 . The expendi t ure invo lved wi l l be debi tab le t o t he

r espect ive heads of Defence Serv ices Est imat es.

6. This issues wi t h t he concurr ence of t he Ministr y of

Defence (Finance) vide their U.O. No. 350/PG/03 dated

19.5.2003.

Yours f a i t h fu l l y ,

Sd/-

(Pia r a Ram)

Under Secret ar y t o t he Government of India.

29. On perusal of the said letter it is seen that the post of Master

Craftsman shall not be part of the hierarchy and placement in this

grade will not be treated as promotion for Highly Skilled Grade either

under normal promotion rules or under ACP Scheme. On the other

hand, the selection from Highly Skilled Grade to the grade of Master

Craftsman shall be 10% of Highly Skilled cadre (i.e. 10% of 35% of the

total) and the placement in this grade shall be with effect from

1.1.1996 and upto the date of the issue of the circular letter. The

placement of the individuals in the posts resulting from the

restructuring and ratio revision, shall be made w.e.f. 1.1.1996, in

relaxation of the conditions, if any, i.e. trade test etc, as one time

measure. 25% of the Highly Skilled Grade posts will be placed in the

grade of MCM. However, they will not form part of the hierarchy.

30. Mr. J. Roy, learned counsel representing the petitioners

submitted that the post of MCM being not in the hierarchy of

promotion, the learned Tribunal could not have issued direction for

promotion of the applicant to the said post, Mr. Choudhury, learned

senior counsel representing the respondent on the other hand

submitted that the benefit that would accrue to the applicant is

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because of the restructuring about which clause-D of the circularletter has indicated. According to him the said clause is applicable to

the applicant which may not be under the ACP.

31. By the aforesaid circular letter dated 20.5.2003, the Govt. of

India in the Ministry of Defence had restructured the cadre of Artisan

Staff in Defence Establishment in modification of the

recommendation of Fifth CPC. As noted above, the applicant

although was recommended for promotion to the post of MCM in the

years 1999, 2000 and 2001, but due to non-availability of vacancy for

Pattern Maker for MCM he could not be promoted. Apart from the

fact that neither the Tribunal nor this Court can issue any direction

for creation of the post of MCM for promotion of the applicant. Even

the respondent authority could not create any post as the same was

fixed for each trade as per their strength. Moreover, the post of MCM

being not in the avenue of promotion but being only a case of

placement, in absence of any vacancy there could not have been any

direction for promotion of the applicant to the said post. As to

whether because of the restructuring as indicated in the aforesaid

circular letter dated 20.5.2003, the applicant was to be promoted

/placed in the post of MCM against the available quota is a matter to

be decided by the authority. However, falling back on the ACP

scheme, the Tribunal could not have directed the petitioners for

granting the benefit of the same by placing the applicant in the post

of MCM as promotion.

32. Above apart, as noted above, the own case of the applicant

before the Tribunal was for his promotion to the post of Chargeman.

However, even under the ACP scheme upgradation cannot be claimed

as a matter of right as the same is also subject to fulfillment of other

mandatory conditions. The Tribunal also failed to consider that the

Grade of Master Craftsman is not in the existing hierarchy as per the

recommendation of the Fifth CPC. An employee in the grade of

Highly Skilled in the pay scale of Rs. 4000 Rs. 6000/- cannot be

granted financial upgradation under the ACP Scheme to the grade of

MCM in the pay scale of Rs. 4500 7000/-. Further, to be eligible for

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the financial upgradation under the ACP scheme, one has to fulfill allthe normal promotion norms. One of the mandatory eligibility

conditions for promotion of a Highly Skilled Tradesman to the

supervisory Grade Chargeman-II under the recruitment rules is the

passing of the trade test. Further, at least 8 years of service in the

feeder grade is required. It will be pertinent to mention here that

the applicant has not passed the Supervisors Trade Test for

promotion from Tradesman to Chargeman.

33. All the above relevant aspects of the matter escaped the

notice of the Tribunal. On the other hand, although the applicant

never prayed for promotion to the post of MCM but his case was one

of promotion to the post of Chargeman, the learned Tribunal by its

impugned judgement and order directed the respondents to grant

promotion to the applicant. While issuing the said direction, the

Tribunal did not consider that even under the ACP Scheme one is to

qualify for upgradation as per normal rules of recruitment. The

applicant having not cleared the trade test etc., whether could have

been promotion or not was not at all considered by the Tribunal and

instead straightway issued the above quoted direction for promotion

of the applicant.

34. As noted above, the ACP Scheme was not applicable to the

case of the applicant. Mr. Choudhury, learned counsel representing

him fairly admitted that the case of the applicant might not be under

the ACP Scheme but would be one under the aforesaid circular letter

dated 20.5.2003 (Annexure-7) quoted above. It was emphasized by

him that the selection from Highly Skilled Grade to the Grade of MCM

being 10% of Highly Skilled Cadre (i.e. 10% 35% of the total), the

applicant in view of his earlier recommendations for promotion to

the post of MCM was entitled to get the said benefit upon

restructuring and ratio revision made effective 1.1.1996. As noted

above, it is the specific case of the petitioners that although the

applicant was recommended for promotion to the post of MCM on

three occasions but could not be promoted for want of vacancy.

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35. The learned Tribunal proceeded with the matter altogether ona different notion of the same. According to the Tribunal, the

applicant was entitled to get promotion under the ACP Scheme and

accordingly issued the aforesaid direction for his promotion from the

due date. However, on both counts i.e. an incumbent will have to be

qualified to earn the upgradation under ACP scheme and the

applicant himself did not ask for his promotion to the post of MCM,

but to the post of Chargeman, the Tribunal could not have issued the

direction for promotion of the applicant to the post of MCM.

36. Above being the position, we are of the considered opinion

that the impugned judgement and order dated 09/08/2006 passed by

the learned Tribunal in OA No. 104/2005 is not sustainable in law.

Accordingly, the same stands set aside and quashed.

37. This now leads us to the issue as was argued by Mr. Choudhury,

learned counsel for the applicant that irrespective of the ACP scheme

the applicant was entitled to get consideration under the

restructuring and ratio revision as envisaged under Annexure-7

circular letter dated 20.5.2003. The circular letter has been quoted

above. In terms of the said circular selection from Highly Skilled

grade to the grade of MCM shall be 10% of Highly Skilled Cadre. The

placement of the individual in the post resulting from restructuring

and ratio revision shall be made w.e.f. 1.1.1996, in relaxation of the

conditions, if any, i.e. trade test etc. as one time measure.

38. As to whether the applicant would have come under the said

scheme of restructuring and ratio revision is a matter to be decided

by the petitioners. Although it has been contended by the petitioners

that inspite of the recommendation of the applicant in 1999, 2000

and 2001 for promotion to the post of MCM, he could not be

promoted for want of vacancy, but it may have to be considered as

to whether it being a case of placement and not promotion, the

applicant would have earned his placement upon restructuring and

ratio revision as envisaged in the said circular letter dated 20.5.2003.

Accordingly, while setting aside and quashing the impugned

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judgement of the learned Tribunal the matter is remanded back tothe respondents i.e. the present petitioners for consideration of the

case of the applicant under the said restructuring and ratio revision.

Let a speaking order be passed in this regard as expeditious as

possible preferably within three months from today.

39. The writ petition is disposed of in the above manner leaving

the parties to bear their own costs.

JUDGE JUDGE

Sukhamay