- (1.) This Letters Patent Appeal has been preferred against the judgment and order dated 9th January, 2013 passed by the learned Single Judge in W.P.(S) No. 995 of 2005, whereby the petition preferred by this appellant has been dismissed.
(2.) Learned counsel for the petitioner submitted that petitioner was appointed in the year 1965 as a Clerk. Thereafter, he was promoted to the post of Receptionist (Upper Division Clerk). Initially, there were two types of post in the cadre of clerks, i.e. Lower Division Clerk and Upper Division Clerk and there were further promotional avenues of Junior Selection Grade, Senior Selection Grade and Super Selection Grade in the post of Upper Division Clerk. On 15th January, 1990 he got Senior Selection Grade and he reached up to the pay-stale of RS. 6954/-. The State Government merged the posts of Lower Division Clerk and Upper Division Clerk in the year 1980 and Junior Selection Grade, Senior Selection Grade, Super Selection Grade were also abolished. It is further submitted by the counsel for the appellant that recommendations of 5th Pay Revision was implemented by the State in the pattern adopted by the Central Government. However, in the Central Government both the posts, i.e. post of Lower Division Clerk and Upper Division Clerk were kept separate. They were not merged. Therefore, for both these posts there were separate pay-scales but in the State Government, as both the posts were merged into the post of a Clerk, for this post there was no corresponding pay scale in the Central Pattern and therefore, a circular dated 28th September, 1999 has been issued (Annexure 3 to the Memo of the Letters Patent Appeal) and as per direction contained in paragraph Nos. 2, 3-1, 3-2, 3-3 and 3-4 of the said circular, anomaly in question has been removed by reviving the posts of Lower Division Clerk, Upper Division Clerk, Junior Selection Grade, Senior Selection Grade and Super Selection Grade. This aspect of the matter, i.e. revival of the aforesaid posts have not been properly appreciated by the learned Single Judge. It is submitted by counsel for the appellant that instead of the first A.C.P. benefit, which was granted to this appellant vide order dated 9th August, 1999, he should have been treated as an Upper Division Clerk and as per length of service he should have been given Junior Selection Grade, Senior Selection Grade and Super Selection Grade by virtue of the Circular dated 28th September, 1999; (Annexure 3 to this Letters Patent Appeal) and the benefit of A.C.P. may be set off against these three selection grades. This aspect of the matter has also not been appreciated by the learned Single Judge. It is further submitted by the counsel for the appellant that merely because the A.C.P. benefit was given it can not be said that promotion can not be given. In fact, on the contrary, if the original petitioner/present appellant is entitled for promotion, then he should not be given A.C.P benefit. This aspect of the matter has not been appreciated by the learned Single Judge and therefore, it is submitted that by virtue of the Circular dated 28th September, 1999, original petitioner may be treated as an Upper Division Clerk because now these posts have been revived and as per length of service he may be given junior Selection Grade, Senior Selection Grade and Super Selection Grade at regular intervals and the amount of ACP benefit may be adjusted against the benefits to be given by the State to this appellant for his Junior Selection Grade, Senior Selection Grade and Super Selection Grade and if any amount is further to be paid by the respondent State the same also may be ordered to be paid. This aspect of the matter has not been appreciated by the learned Single Judge. If the claim of this appellant (original petitioner) is not accepted, as per the learned Single Judge the appellant will not get any benefit of promotion or any of the selection grades except the benefit of one A.C.P though the appellant was in service since 1965. This idea of giving benefit of only one ACP to the appellant who is working since 1965 as a Clerk is running contrary to the Circular dated 28th September, 1999 (Annexure 3 to the Memo of this L.P.A.) and therefore, it is submitted by the counsel for the appellant that respondents be directed to treat this appellant as Upper Division Clerk and further to grant him Junior Selection Grade, Senior Selection Grade and Super Selection Grade and this calculation may be made to grant Selection grade as was in existence prior to merger of the two cadres namely Lower Division Clerk and Upper Division Clerk, which is governed by Circular No. 6667 dated 20th July, 1973.
(3.) Counsel for the respondent State submitted that no error has been committed by the learned Single Judge in appreciating the fact that this appellant/original petitioner was already granted benefit of ACP on 9.8.1999 and therefore, fie is not entitled to the benefit of next Assured Career Progression because that will be due after 12 years from 1999, i.e. in the year 2011 and meanwhile this appellant waste retire on 30th April, 2003. Counsel for the State has further submitted that this appellant has not been discriminated as no employee junior to the appellant has been given promotion. It is further submitted by the counsel for the respondent State that as he was given benefit of A.C.P. no promotion can be given to this appellant. This matter has also been appreciated by the learned Single Judge.;