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Judgment
Per: Mr. Braj Mohan Agrawal, Administrative Member
The applicant is a retired Assistant Engineer (Civil), Military Engineer Services. He joined service on 26.03.1973 as Junior Engineer(Civil) and retired from service on 30.9.2009 after rendering more than 36 years of service. The applicant is aggrieved by the withdrawal of the 2nd financial up-gradation under the Assured Career Progression Scheme granted to him, 6 years after his retirement from service, that too without notice and without informing the reasons for doing so. As per the applicant, in the year 1996, Junior Engineers in MES who had completed 15 years of service from their respective dates of entry into service were granted the scale of pay of Assistant Engineer (next promotional post) namely Rs. 6500-10500 with retrospective effect from 1.1.1991.
Applicant had earlier approached this Tribunal vide OA No.974/2017 and this Tribunal vide its order dated 16.06.2023 decided the matter placing reliance on the judgement of Hon'ble Apex Court in State of Punjab and others etc. v. Rafiq Masih (White Washer) etc. {(2015) 4 SCC 334} , without going into the merits of the case. The respondents challenged the order of the Tribunal in OP(CAT) No.144/2023. The Hon'ble High Court of Kerala disposed the OP(CAT) vide order dated 11.01.2024, set aside the impugned order of the Tribunal and remanded the Original Application back to the Tribunal to consider afresh on merits.
The applicant was granted the 2nd financial up-gradation under the ACP Scheme initially from 10.7.2004 as per Directorate General (Personnel)EI(DPC-I) E-in-C's Branch AHQ New Delhi Letter No. B/41025/ACP/AES/JES / 2005-06 / EI(DP-I) dated 8.11.2006 (Annexure A-1/7). The applicant's name figures at Serial No.19. Subsequently through Letter No. B/41025/R-ACP/AES/JES/E1 (DPC-I) dated 7.9.2009 (Annexure A-1/9), the date of effect of 2nd financial up-gradation under the ACP Scheme in respect of the applicant was ante-dated from 10.7.2004 to 9.8.1999.
Later on the name of the applicant had been deleted from the list of those sanctioned the 2nd ACP as per E-in-C Branch Letter No.B/41028/ACP/AES/JES/E1(DPC) dated 17.12.2014 (Annexure A-1/11). Para 4 of the official noting sheet No.B/41028/ACP/AES/JES/E1(DPC) dated 12.12.2014, obtained by the applicant under RTI (Annexure A1/13) is as under:-
"2nd financial up-gradation under the ACP Scheme has been wrongly granted to the above individuals by considering 24 years of regular service from the date of initial appointment. However for all the individuals, 2nd financial up-gradation under the ACP Scheme can only be granted after the date of grant of 1st financial up-gradation as the grant of 1st financial up-gradation has been delayed due to late passing of the MES procedure examination. As per detail in Appx 'A', the 2nd ACP already granted to officials through various DPC panels needs to be withdrawn by amending the panel."
The applicant contends that he never received the 1st financial up-gradation under the ACP Scheme since he was already granted the pay up-gradation with effect from 1.1.1991, and it is also incorrect to say that the 2nd financial up-gradation can be given only if the 1st financial up-gradation under the ACP Scheme has already been given. If the concerned person has already been given one promotion or pay up-gradation during the 12 year period, that will be set off against the 1st financial up-gradation under the ACP Scheme, but that will never dis-entitle him from getting the 2nd financial up-gradation under the ACP Scheme. As regards the passing of MES procedure examination, it is submitted that those JEs who had completed 24 years service between 9.8.1999 to 10.7.2004 had been given relaxation in educational qualifications in Recruitment Rules for ACP purpose as per E-in-C's Branch Letter No.B/41025/ACP/AES/JES/E1(DPC-I) dated 14.3.2007 (Annexure A-1/15).
The applicant submits that being aggrieved by the non-grant of 2nd ACP on completion of 24 years of service, 41 Engineers working as JE/AE as well as retired, filed OA No. 540/2002 and OA No.595/2002 to OA No.634/2002 before the Bangalore Bench of this Tribunal. Those Original Applications were allowed by final order dated 25.11. 2002 and the directions therein were implemented as per MoD Letter No. PC-90237 / 8275 / E1C(Legal-C) / 671 / CAT /D(Works) dated 14.11.2003. As far as passing of MES Procedure Examination is concerned, those JEs who had completed 24 years service between 9.8.1999 to 10.7.2004 had been given relaxation in educational qualifications in Recruitment Rules for ACP purpose as per E-in-C's Branch Letter No. B/41025/ACP/AES/JES/E1(DPC-I) dated 14.3.2007. Hence, the late passing of MES Procedural Examination is no reason, much less good reason to deprive the applicant of the benefit of 2nd financial up-gradation under the ACP Scheme.
Aggrieved by withdrawal of 2nd financial upgradation granted under ACP, the applicant has filed this Original Application and sought the following reliefs:-
i)Declare that the action of the respondents in withdrawing the 2nd financial up-gradation under the Assured Career Progression Scheme granted to the applicant, 6 years after his retirement from service, that too without notice and without informing the reasons for doing so, is illegal, arbitrary, unjust, unreasonable and irrational and that the same violates Articles 14 & 16 of the Constitution of India and quash Annexure A-1(A).
ii) Direct the respondents to restore to the applicant the benefits of the 2nd ACP with all consequential benefits including further up-gradation under the MACP Scheme to the appropriate Grade Pay i.e., to the Grade Pay of Rs. 8700, arrears, revision of pension and pensionary benefits and interest. as expeditiously as possible and at any rate within a time frame to be prescribed by this Hon'ble Tribunal.
iii) To quash Annexure A-10
The respondents filed reply statement and submit that the applicant joined in service on 26.03.1973 and retired from service w.e.f. 30.09.2009. The date of 1st ACP upgration granted to the applicant was changed from 09.08.1999 to 10.07.2004, as the applicant cleared the MES Procedure exam only on 19.01.2004(Annexure R-2). Passing the Procedure Examination is a mandatory requirement for promotion from Junior Engineer (Civ) to Assistant Engineer (Civ) as per the relevant Recruitment Rules (Annexure R-1). Therefore, as per the rules contained in the Department of Personnel and Training O.M. No 35034/1/97 Estt (D) dated 09.08.1999, the cancellation of the 2nd ACP upgradation granted to the applicant, vide Letter No: B/41028/ACP/AES/JEs/E1 (DPC) dated 17.12.2014 was in order. Applicant had passed MES Procedure Examination on 10.07.2004, which is mandatory requirement for grant of ACP benefits in promotional hierarchy. Therefore, he was eligible for ACP benefits from 10.07.2004. However, in the year 2009 (Annexure A-1/9) an inadvertent error of ante dating his first ACP from 10.07.2004 to 30.09.2009 had occurred at the instance of the Department and the same was corrected via Letter No. B/41028/ACP/AES/JEs/E1 (DPC) dated 17.12.2014 (Annexure A-1/11).
The Respondents also submit that the ACP scheme was introduced with the clause that financial up gradation would be granted to employees who have stagnated for want of promotional prospects due to lack of vacancy, provided they are found to have fulfilled all conditions for promotion and are found fit for next higher promotion. The applicant in the instant case could not pass the Procedure Examination which is a promotional norm for the promotion post, a mandatory requirement for promotion to AE. Thus, the applicant is not entitled for grant of financial upgradation under the ACP scheme prior to having fulfilled the required norms for the same.
The applicant was drawing pay scale of AE w.e.f. 01.01.1991 based on Court judgment granting the scale of Asst Engineer to JEs who have completed 15 years of service. The ACP Scheme introduced w.e.f. 01.08.1999 by the Govt of India and the mandatory requirement for grant of ACP cannot be over ruled by any department. As per the policy passing of MES Procedure Examination was mandatory for promotion to the post of AE and the same QR was applicable for grant of ACP. The applicant, after putting 21 years of service, could pass the MES procedure exam only on 19.01.2004 and thus became eligible for 1st ACP. Therefore his 2nd ACP would fall due on 19.01.2016 after completion of 12 years from the date of 1st ACP.
The respondents further plead that in the meanwhile, MACP Scheme in Grade Pay hierarchy on completion of 10, 20 and 30 years of service came into force w.e.f. 01.09. 2008. The mandatory requirement for grant of MACP in grade pay hierarchy is only 'Very Good' in ACR. Hence, the applicant became eligible for 2nd MACP on completion of 20 years and 3rd MACP on completion of 30 years of service.
The decision taken by the department was a corrective action for the error earlier committed to avoid further loss to the Government money. In the light of the foregoing submissions the action taken by the department is only a corrective action. The reason for the same has also been provided in M/o Defence Letter No: 85610/ACP/47/Supdts/ CSCC/715/07/CD-Works dated 22.03.2007 (Annexure A-1/16).
Respondents filed additional reply statement to the amended OA and reiterated their stand that as per Recruitment Rule, MES procedure examination is required to be passed for further promotion/upgradation. After passing the MES Procedure Examination, the applicant was granted the 1st ACP w.e.f. 22.04.2004. Whereas the date has been erroneously amended to 09.08.1999 as the applicant is not eligible for the same on 09.08.1999.
Respondents further contend that as the applicant completed 24 years of service on 26.03.1997, he was not eligible for relaxation in educational qualification, which was applicable to only those who completed 24 years of service between 09.08.1999 and 10.07.2004. Therefore the applicant is not eligible for grant of ACP benefit under this policy relaxation, which has been communicated to the applicant vide letter dated 10.08.2016 (Annrexure R-6). In terms of MACP scheme, the applicant was granted 2nd MACP in the Grade Pay of ₹4800/- on completion of 20 years and 3rd MACP in Grade Pay of ₹5400/- on completion of 30 years of service (vide Annexure R-7 dated 25.10.2017).
Shri R. Sreeraj, learned counsel for the applicant and Smt. C. Deepa Devi representing Shri N. Anilkumar, SPC, learned Standing Counsel were heard at length on 06.08.2026 and 12.08.2026. Perused the records. From the rival pleadings, we have to essentially adjudicate claims for financial upgradatins under ACP/MACP Scheme, specifically grant of 2nd financial upgradation which was ante dated to 09.08.99 and later on withdrawn by respondents.
Applicant entered service on 26.03.1973 and was granted pay scale of Assistant Engineer w.e.f. 01.01.1991 on completion of 15 years of service as JE, which has been admitted by the 2nd respondent. Therefore, in terms of ACP Scheme, the applicant was entited for 2nd ACP on completion of 24 years of eligible service. The contention of the respondents that he was granted only 1st ACP initially w.e.f. 10.07.2004 on passing departmental examination is contrary to records produced (Annexure A1/7-8 and Annexure A1/10). All these records prove that the applicant was granted 2nd financial upgradation under ACP Scheme, duly accounting for first financial upgradation i.e. Grant of AE pay scale since 1991.
Condition No.4 and Condition No.15 for grant of benefits under ACP Scheme are reproduced below for appreciation of the case:-
“4.The first financial upgradation under the ACP Scheme shall be allowed after 12 years of regular service and the second upgradation after 12 years of regular service from the date of the first financial upgradation subject to fulfillment of prescribed conditions. In other words, if the first upgradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc this would have consequential effect on the second upgradation which would also get deferred accordingly.”
15.Subject to Condition No. 4 above, in cases where the employees have already completed 24 years of regular service, with or without a promotion, the second financial upgradation under the scheme shall be granted directly. Further, in order to rationalise unequal level of stagnation, benefit of surplus regular service (not taken into account for the first upgradation under the scheme) shall be given at the subsequent stage (second) of financial upgradation under the ACP Scheme as a one time measure. In other words, in respect of employees who have already rendered more than 12 years but less than 24 years of regular service, while the first financial upgradation shall be granted immediately, the surplus regular service beyond the first 12 years shall also be counted towards the next 12 years of regular service required for grant of the second financial upgradation and, consequently, they shall be considered for the second financial upgradation also as and when they complete 24 years of regular service without waiting for completion of 12 more years of regular service after the first financial upgradation already granted under the Scheme.”
Applicant having completed 24 years service in 1997 became eligible for grant of 2nd financial upgradation under ACP Scheme which came into force w.e.f. 09.08.1999.
Evidently, the applicant was granted 2nd financial upgradation under ACP Scheme initially from 10.07.2004 order dated 08.11.2006(Annexure A-1/7). Subsequently, superseding this order dated 08.11.2006 grant of 2nd ACP was ante-dated to 09.08.1999 vide order dated 07.09.2009 (Annexure A-1/9). Grant of 2 nd ACP w.e.f. 09.08.1999 was withdrawn vide order dated 17.12.2014, after nearly 5 years of superannuation of the applicant, who retired on 30.09.2009. Evidently, no prior notice to the applicant, who had already superannuated prior to withdrawal of financial benefit granted under 2nd ACP, was issued. No opportunity for representation was granted to him, which we consider violation of basic principle of natural justice.
As per the stated reason for withdrawal of the 2nd financial upgradation under ACP, as per file notings of Dec.'2014 obtained by the applicant under RTI is as under:
“4.Analysis: 2nd financial upgradation under the ACP Scheme has been wrongly granted to the above individuals by considering 24 years of regular service from the date of initial appointment. However for all the individuals 2nd financial upgradatin under the ACP scheme can only be granted after the date of grant of 1st financial upgradation as the gant of 1st financial upgradation has been delayed due to late passing of the MES procedue examination. As per details in Appx.'A', the 2nd ACP already granted to officials through various DPC panels needs to withdrawn by amending the panel.”
We observe from the records that grant of 2nd ACP was ante-dated from 10.07.2004 to 09.08.1999 on account of relaxation in educational qualification order dated 14.03.2007 (Annexure A1/15) as under:
“3.The competent authority has therefore decided to grant 2nd ACP w.e.f. 09 Aug 1999 to all eligible diploma/degree holders who have completed 24 years of eligibility service.”
Finding that the applicant had completed 24 years of service prior to 09.08.1999 and holding that this policy relaxation is not applicable to him the 2nd ACP benefit was withdrawn by the respondents in the year 2014. Whereas, we find as per Ministry of Defence letter No.85610/ACP/47/Supts/CSCC/715/07/(D-Works) dated 22.03.2007 (Annexure A-1/16) issued with the concurrence of Department of Personnel & Training for adoption of ACP in respect of erstwhile Supdts B&R/E&M/SAs(Redesignated as JEs), there was no condition of passing MES procedure examination.
Appendix 'A1 to Mod.letter No.85610/ACP/47/SUPDTS/CSCC/715/07/D(Works) Dated 22nd Mar 2007
Adoption of Assured Career Progression Scheme (ACPs) in lieu of time bound Pay Promotion Scheme in respect of erstwhile Supdt B/R & E/M Gde I & Gde II's Redesignated as JE (Civil) & JE(E/M)
Category Present pay scale of entry grade post First financial upgradation Second Financial Upgradation Remark Scale of pay Effective date Scale of pay Effective date 2 3 4 5 6 7 8 Entries against S.No item No.1, 2 & 3 will remain unchanged Diploma Engineer recruited as erstwhile Supdt B&R/E&M Gde Iis (Redesignated as JEs and promoted as AEs after 09th July 1991 or yet to be promoted #
₹5000-150-8000
₹6500-200-10500 09th Aug 99 on completion of 12 years of regular service whichever is later $ ₹10000 -325-15200 09/08/99 #
$
# Diploma Engineer who have been placed in the pay scale of ₹5500-9000 after completion of 5 years of regular service as per the old scheme shall be brought back to the scale of 5000-8000 w.e.f. 9th Aug 99. Pay will refixed in the scale of ₹5000-8000 as on 9th Aug 99 at nearest stage equal or just lower and balance to be kept as PP to be absorbed in the future increments.
$ Diploma holder JEs will be granted 2nd ACP in the scale of ₹10000-325-15200 on completion of 24 years of service or 9th August 1999 whichever is later. However diploma holder JEs will not be eligible for promotion to the grade of EE if fall due during the period of 9th August 1999 to 10th July 2004 due to the statutory provisins of SRO 4(E) dated 9th Jul 1991
On the strength of this authority grant of 2nd ACP to the applicant was ante dated to 09.08.1999. The intent of the policy relaxation was to enable JEs who had completed 24 years of eligible service to get 2nd ACP benefit in relaxation of educational qualification in RRs.
The contention of the respondent that the applicant was drawing pay scale of AEs with effect from 01.1.1991 based on judgement that JEs who has completed 15 years of service should be granted scale of AEs. Therefore, he was granted only 1st ACP in 2004 only after passing MES procedure examination. This stand is unsustainable in the eyes of law and contrary to order issued by the respondents themselves explicitly granting 2nd financial upgradation under ACP initially w.e.f. 10.07.2004, antedating to 09.08.1999 and subsequently withdrawing it. The grant of higher pay scale with effect from 01.01.1991 can only be considered as 1st financial upgradation and he was eligible for 2nd ACP upgradation in terms of ACP condition No.15, on completion of 24 years eligible service as on 09.08.1999, which was correctly granted to the applicant. Bangalore Bench of this Tribunal had also come to similar conclusion in its order dated 25.11.2002 in OA No.540/2002 and OA No.595/2002 to OA No.634/2002.
Therefore, we hold that withdrawal of 2nd ACP is unsustainable and liable to be quashed. The applicant may be allowed to draw the 2nd financial upgradation under the ACP Scheme, with effect from 09.08.1999 as was earlier given to him. The consequential benefits dues to this may also be granted. This would include financial upgradation as per rules and as due under the MACP Scheme to the appropriate level of Grade Pay and the release of arrears of the same, if any. Further, his pension and pensionary benefits may be appropriately fixed and revised on this basis and arrears; if any in this regard, also be released. This entire exercise may be completed within a period of three months from the date of issue of this order. Thereafter, interest @8% p.a. shall be payable.
The OA is allowed as above. We make no order as to costs.