Ramchandra Ram vs Union Of India & Ors.

By Hon’ble Mr. Justice Om Prakash-VII, Member (J)

This O.A. has been filed by the applicant with prayer for setting aside the rejection letter dated 21^st November, 2011 and for direction to the respondents to grant first financial upgradation under ACP w.e.f. 9.8.1999 and second financial upgradation under ACP w.e.f. 9.8.1999.

The facts in brief are that the applicant was appointed as Chowkidar on 7.7.1967. On 9^th August, 1999, the Govt. of India issued a policy for grant of financial upgradation to Central Govt. employees after completion of 12 years and 24 years of service. In the policy, there was no provision of conducting any test before granting the financial upgradation under ACP scheme but as per direction of respondent No.2 and 3, passing of trade test was mandatory for granting upgradation under ACP scheme. As the applicant has completed 24 years of service on 7.7.1991 and the scheme was introduced w.e.f. 9.8.1999, therefore, the applicant was entitled for first and second financial upgradation w.e.f. 9.8.1999 whereas the first financial upgradation was granted to the applicant on 7.6.2002 when applicant had passed the trade test. The applicant was further directed to appear in the test of Pipe Fitter (SK) so that his case could be considered for second financial upgradation. Applicant appeared in the test on 12.12.2002 but in the result remarks was given “Not willing to appear”. Applicant retired on 30.6.2006. Applicant moved a representation dated 30.11.2005 with a request to rectify the result. In the year 2008, applicant came to know that there was no requirement of trade test for grant of ACP. Thereafter, applicant submitted representation dated 22.9.2008 with a request to grant him second ACP. Applicant filed O.A. No. 1642/2011 which was dismissed as withdrawn vide order dated 17.1.2012. Applicant received letter dated 21^st November, 2011 under which the claim of the applicant was rejected, which has been challenged in the present O.A.

Per contra, learned counsel for the respondents filed counter affidavit, through which it is stated that the present O.A. is barred by limitation hence the O.A. is legally not maintainable. In para 4(iii) of the O.A. applicant has stated that “from the policy it can be seen that there was no provision of conducting any test before granting the financial upgradation under ACP scheme but as per direction of the respondents No. 2 and 3, passing of trade test was mandatory for granting upgradation under ACP scheme. In reply to this para, respondents have stated in counter “need no comments.” It is further stated that in the letter dated 16^th June 2003 annexed along with Supplementary C.A as Annexure D, in which name of applicant finds place at Sl. No. 30, clearly mentioned that “Appeared in the trade test of Pipe Fitter (SK) and result declared as under :- Not willing to appear.” It is further stated that applicant has filed an application on 30 November, 2005 after three years of the aforesaid order to rectify the error. O.A. No. 1642/2011 filed by the applicant was dismissed as withdrawn vide Tribunal’s order dated 17.1.2012 but no liberty was given to the applicant to refile the O.A. Applicant filed applications dated 8^th August, 2011 and 4^th November, 2011 for grant of financial upgradation and in reply to that respondents passed the impugned order dated 21^st November, 2011 through which it is informed that “You have already been intimated vide this HC letter No. 10061/ACP/2082/EIB dated 15 Oct 2008 that passing of trade test is compulsory for grant of ACP as per Govt. orders. As such it is requested not to press further.”

Rejoinder Reply has been filed by the learned counsel for the applicant, through which he has reiterated the facts as stated in the O.A. and denied the contents of the counter affidavit.

Supple. Counter Reply has also been filed by the learned counsel for respondents through which it is stated that as per para 6 of Conditions for Grant of Benefits under the ACP scheme enclosed as Annexure I along with Office Memorandum dated 9^th August, 1999 issued by DOP&T regarding assured Career Progression Scheme for the Central Govt. Employees, it is clearly mentioned that “Fulfillment of normal promotion norms (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, financial upgradations as personal to the incumbent for the stated purposes and restriction of the ACP scheme for financial and certain other benefits (House Building Advance, allotment of Govt. accommodation, advances etc) only without conferring any privileges related to higher status (e.g. invitation to ceremonial functions, deputation to higher posts etc.) shall be ensured for grant of benefits under the ACP scheme;”. According to aforesaid para, trade test was conducted for the purpose of granting ACP.

Heard learned counsel for the parties.

Learned counsel for the applicant argued that Central Govt. employee is entitled for first financial upgradation after 12 years of service and second financial upgradation after 24 years of service under ACP. First financial upgradation was granted to the applicant on 7.6.2002 after passing of trade test whereas he was entitled for first financial upgradation w.e.f. 9.8.1999 i.e. from the date of introduction of scheme of ACP. It is further argued that applicant appeared in the trade test for second financial upgradation but in the result, it has wrongly been mentioned that “Appeared in the trade test of Pipe Fitter (SK) and result declared as under :- Not willing to appear.” Applicant has represented for correcting the result but respondents has rejected the claim of the applicant and he has been deprived of the second financial upgration only because of wrong declaration of result.

Learned counsel for the respondents argued that the trade test is mandatory for granting financial upgradation under ACP scheme. It is further argued that applicant appeared in the trade test on 7.6.2002 and after passing of the same, he was granted first financial upgradation in the grade of Mate Pipe Fitter. But he was again directed to appear in the test of Pipe Fitter (SK), so that his case could be considered for second financial upgradation but result shows that applicant was not willing to appear. Hence his case could not be considered for second financial upgradation.

We have considered the rival submissions of the parties and have gone through the entire record.

It is evident from the record that applicant has earlier approached before this Tribunal through O.A. No. 1642/2011, which was withdrawn by him on 17.1.2012. Although, in the O.A., it is mentioned on behalf of the applicant that O.A. was withdrawn with liberty to file fresh but perusal of the judgment dated 17.1.2012 (Annexure No. 13 of the O.A.) reveals that no such liberty was given to the applicant. Simply, the O.A. was dismissed as withdrawn. If such is the position, applicant cannot be permitted again to re-agitate the matter for the same cause of action. Apart from this, if the plea taken by the parties are compared in the light of the submissions made across the bar, then it might be possible that applicant would have travelled for appearing in the trade test and was also present at the place of examination but was not willing to appear in the trade test. Due to this reason, authorities concern conducting the examination has mentioned “not willing to appear”. On this score also , if there was pre-condition to cross the trade test for granting MACP, applicant did not cross the test, no documentary evidence has been adduced on behalf of the applicant to show that he actually passed the trade test, O.A. is not liable to be allowed. It is also worthwhile to mention that burden of proof of the facts disclosed in the O.A./ pleadings taken in it, lies upon the applicant because he has approached this Tribunal for the relief. Thus, it was his duty to prove that he has crossed the trade test. If burden lies upon the applicant would have been discharged, then onus would be shifted upon the respondents. Reference may also be taken of the provision of Section 101 of Indian Evidence Act, 1872. Section 101 of The Indian Evidence Act, 1972 is reproduced below:-

For the foregoing reasons, we are of the opinion that prayer made by the applicant in this O.A. cannot be granted and O.A. is liable to be dismissed.

Accordingly, O.A. is dismissed.

There shall be no order as to costs.