ABDUL BARI Vs. UNION OF INDIA AND ORS.
LAWS(MEGH)-2013-4-8
HIGH COURT OF MEGHALAYA
Decided on April 10,2013

ABDUL BARI Appellant
VERSUS
Union of India And Ors. Respondents

JUDGEMENT

T. Nandakumar Singh, J. - (1.) HEARD Mr. N. Khan, learned counsel appearing for the petitioner and Mr. S.C. Shyam, learned CGC appearing for the respondent Nos. 1 -6. The petitioner has been serving as Havildar/Cipher from 20.11.1991. In this writ petition, he prays for a direction to the respondents to grant him the 2nd financial up -gradation by counting his continuous service as Havildar/Cipher from 20.11.1991 under the Modified Assured Career Progression Scheme (for short "MACPS") dated 18.09.2009 and also for a direction to the respondents to grant the first ACP to the petitioner w.e.f. 20.11.2003 and also for quashing the impugned order dated 07.10.2009 for granting the First financial benefits w.e.f. 03.11.2007 and also the impugned letter dated 12.07.2012 that the musteration is a method of appointment in RRs and it would be counted as up -gradation for the purpose of MACPS and the 1st ACP granted to the petitioner w.e.f. 03.11.2007 will be treated as 2nd financial up -gradation and as for granting of 3rd financial up -gradation to the petitioner, it will be considered and granted on completion of 30 years qualifying service and other conditions as required.
(2.) FACTUAL backgrounds: - - The petitioner was enrolled in Assam Rifles on 27.11.1986 as Rifleman/ORL (Operator Radio and Line) and had undergone basic training of 6(six) months at Assam Rifles Training Centre, Diphu, Assam. The petitioner had also undergone technical training for further period of 6(six) months for ORL trade. After completion of the basic training and technical training, the petitioner started serving as Rifleman/ORL in Assam Rifles. The petitioner after completing unblemished service of four years as Rifleman/ORL, in response to the Notification of the Department that the Personnel serving as Rifleman/ORL, who had rendered three years of service are eligible to appear in exam for the purpose of changing their trade to Cipher Trade, had volunteered to change his trade and appeared before the Board convened for the said purpose in the year 1989. The petitioner was selected by the Board. Accordingly, he was appointed as Havildar/Cipher on 20.11.1991 through the process of conversion/re -musteration. The Havildar/Cipher is the lowest rank in the Cipher Trade. There is no promotion to the Havildar/Cipher from the lower rank, like Rifleman and Naik and there is also no direct recruitment from the fresh to the Havildar/Cipher. The appointment as Havildar/Cipher which is the lowest rank in the trade is only through conversion/re -musteration from the other trades. The petitioner while serving as Rifleman/ORL was eligible for promotion to the post of Naik/ORL but the petitioner in the process of re -musteration had been categorized as Havildar/Cipher. Since 20.11.1991, the petitioner has been working as Havildar/Cipher continuously without any break and promotion till date. The 5th Pay Commission recommended for financial up -gradation to all the Central Govt. employees i.e. ACP -I and ACP -II on completion of 12 and 24 years respectively in the category in which they were appointed subject to qualification for promotion to the rank/pay scale to which ACP is granted and the Scheme i.e. Assured Career Progression (for short "ACP") was made effective w.e.f. 09.08.1999 vide Office Memorandum F. No. 35034/1/97 -Estt. (D (Vol. IV), Govt. of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) North Block, New Delhi -1100001, February, 2000. In para 2 of the said Memorandum, it is stated that the ACP Scheme should strictly be implemented in keeping with the Department of Personnel and Training Office Memorandum dated August, 1999 and also it has been stated in the Office Memorandum dated August, 1999 a doubt raised by various quarters have been duly examined point -wise and clarifications have already been indicated in the Annexures. Para 3.1 of the Office Memorandum dated August, 1999 reads as follows: - - POSTS IN GROUP 'A', 'B', 'C AND 'D' CATEGORIES 3.1. While in respect of these categories also promotion shall continue to be duly earned, it is proposed to adopt the ACP Scheme in a modified form to mitigate hardship in cases of acute stagnation either in a cadre or in an isolation post. Keeping in view all relevant factors, it has, therefore, been decided to grant two financial up -gradation as recommended by the Fifth Central Pay Commission and also in accordance with the Agreed Settlement dated September 11, 1997 (in relation to Groups 'C and 'D' employees) entered into with the Staff Side of the National Council (JCM) under the ACP Scheme to Groups 'B', 'C' and 'D' employees on completion of 12 years and 24 years (subject to condition No. 4 in Annexure -I) of regular service respectively. Isolated posts in Group 'A', 'B', 'C' and 'D' categories which have no promotional avenues shall also qualify for similar benefits on the pattern indicated above. Certain categories of employees such as casual employees (including those with temporary status), ad hoc and contract employees shall not qualify for benefits under the aforesaid Scheme. Grant of financial up -gradation under the ACP Scheme shall, however, be subject to the conditions mentioned in Annexure -II (attached).
(3.) PARAS 1, 2, 3, 4, 5.1 and 5.2 of the Annexure -II to the Office Memorandum dated August, 1999 reads as follows: - - ANNEXURE -IICONDITIONS FOR GRANT OF BENEFITSUNDER THE ACP SCHEME 1. The ACP Scheme envisages merely placement in the higher pay scale/grant of financial benefits (through financial up -gradation) only to the Government servant concerned on personal basis and shall, therefore, neither amount to functional/regular promotion nor would require creation of new posts for the purpose; 2. The highest pay -scale up to which the financial up -gradation under the Scheme shall be available will be Rs. 14,300 -18,300/ -. Beyond this level, there shall be no financial up -gradation and higher posts shall be filled strictly on vacancy based promotions; 3. The financial benefits under the ACP Scheme shall be granted from the date of completion of the eligibility period prescribed under the ACP Scheme or from the date of issue of these instructions whichever is later; 4. The first financial up -gradation under the ACP Scheme shall be allowed after 12 years of regular service and the second up -gradation after 12 years of regular service from the date of the first financial up -gradation subject to fulfillment of prescribed conditions. In other words, if the first up -gradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc. this would have consequential effect on the second up -gradation which would also get deferred accordingly;;


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