Union of India and others v. K.R. Prakasan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA TUESDAY, THE 5TH DAY OF APRIL 2016/16TH CHAITHRA, 1938 WP(C).No. 37809 of 2008 (S) ---------------------------- AGAINST THE ORDER/JUDGMENT IN OA 284/2006 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH PETITIONER(S): ------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF, AGRICULTURE, (DEPARTMENT OF ANIMAL HUSBANDRY, DAIRYING AND FISHERIES),NEW DELHI. 2. THE DIRECTOR, CENTRAL INSTITUTE OF FISHERIES, NAUTICAL & ENGG.TRAINING FORESHORE, ROAD, COCHIN-16. 3. THE CHIEF INSTRUCTOR (CRAFTS & GEAR), CENTRAL INSTITUTE OF FISHERIES, NAUTICAL & ENGG., TRAINING FORESHORE ROAD, COCHIN-16. BY ADVS. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL RESPONDENT(S): -------------- K.R.PRAKASAN, S/O.RAGHAVAN,SKIPPER -INCHARGE, CENTRAL INSTITUTE OF FISHERIES NAUTICAL &, ENGG.TRANINING, VISHAKAPATTANAM, PERMANENT, ADDRESS:KADAYIL HOUSE, NANDATHU KUNNAM, NORTH, PARUR, ERNAKULAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC 37809/2008 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF THE O.A.NO:284/06 WITH ITS ANNEXURE EXT.P2: -DO- REPLY STATEMENT EXT.P3: -DO- ADDITIONAL REPLY STATEMENT EXT.P4: -DO- INTERIM ORDER DT.21.2.2008OF THE TRIBUNAL IN O.A.NO:284/2006 EXT.P5: -DO- OF 2ND ADDITIONAL REPLY STATEMENT EXT.P6: -DO- ORDER DT.8.7.2008 IN O.A.NO:284/2006 JJ /TRUE COPY/ P.S.TO JUDGE ## K. SURENDRA MOHAN & P.V.ASHA, JJ. ------------------------------W.P(C) NO. 37809 OF 2008 ---------------------------------Dated this the 5[th] April, 2016. ## JUDGMENT Surendra Mohan, J. The respondents in O.A.284/2006 challenge Ext.P6 order of the Central Administrative Tribunal ('CAT' for short) Ernakulam Bench allowing the same. The respondent had filed the O.A contending that denial of benefits of the financial upgradation under the ACP scheme to him was illegal and liable to be set aside. 2. The respondent had joined service as a Bosun on 13.1.1981. On 27.11.2002 he was promoted as a Mate. He completed 24 years of service on 13.1.2005. According to him, he was entitled to the second financial upgradation on completion of 24 years of service as per the ACP Scheme. As per Annexure A1 dated 23.3.2006 his claim was rejected for WPC 37809/2008 2 the reason that, he did not possess the essential qualifications for the post of Skipper. The post of Skipper is the next promotional post of the Mate which the respondent was holding at that time. The respondent contended that as per Annexure A2 order dated 18.10.2005 he was directed to function as the Skipper in charge. Though he was discharging the duties of Skipper he was also not being paid the pay of the Skipper. 3. The petitioners disputed the contentions of the respondent placing reliance on Annexure R1(c) which is the ACP Scheme. According to the petitioners as per Clause 6 of Annexure-1 of Annexure R1(c), fulfilment of normal promotion norms was necessary for the grant of financial upgradation. Reliance was placed on Annexure R1(d), clarification issued by the DPT where in answer to doubt No:53 it has been clarified that for extending the benefits of the ACP scheme an incumbent would have to satisfy the essential qualifications of the next promotional post. WPC 37809/2008 3 4. The CAT considered the respective contentions of the parties, took note of the fact that, the respondent had been officiating as a Skipper and placing reliance on the decisions of the Supreme Court in Jaswant Singh v. Punjab Poultry Field Staff Association & others [2002(1)SCC 261 & Selvaraj v. Lt.Governor of Island, Port Blair & others [1998(4) SCC 291] and holding that the denial of benefits of the second financial upgradation under the ACP Scheme to the respondent was unjustified has allowed the O.A. Therefore, the CAT has directed the petitioners to grant the second ACP to the respondent with effect from 13.1.2005. The petitioners are aggrieved by the said direction. 5. According to the learned Asst.Solicitor General, it is necessary for an employee to satisfy the qualifications of the next promotional post, for being eligible to the benefits of the ACP Scheme. Therefore it is contended that the petitioners were right in denying to the respondents the benefits thereof. Subsequently, the requirement of a certificate of competency WPC 37809/2008 4 was altered by amendments to the recruitment rules, which prescribed a composite method of selection. Therefore, on 24.5.2008 the respondent was granted the benefits of the second ACP. He was later on promoted as a Skipper and he has retired from service on 31.5.2014. In view of the above according to the learned Asst. Solicitor General the order of the CAT requires to be interfered with and the benefits of the second ACP of the respondent should be confined to the period commencing from 24.5.2008. 6. Having heard the counsel at length, we are not satisfied that Ext.P6 requires any interference. The CAT has rightly taken note of the position that, the petitioners have while denying the benefits of the second ACP to the respondent, posted him as Skipper in charge to officiate in the said higher post. While discharging the duties in the said post he was certainly entitled to the pay and other benefits attached thereto. We also notice that, the qualifications of the post of Skipper was subsequently changed and that, on the WPC 37809/2008 5 basis of the qualifications possessed by the respondent, he was later on promoted to the said post. The benefits of the ACP Scheme to which the respondent was entitled on completion of the required 24 years of service has been made conditional on the petitioner acquiring the essential qualifications in the next higher post by Annexure A1. In the present case, the respondent was admittedly functioning as the Skipper and discharging the duties of the said post. Therefore, the denial of the benefits of the second ACP to him is unsustainable as rightly pointed out by the CAT. The petitioners on the one hand denied to the respondent the benefits of the second ACP on the ground that he was not possessed of the essential qualifications of the post of Skipper while at the same time posting him as a Skipper in charge, to discharge the duties of the next higher post, on the basis of his experience. Since he had been discharging the duties of the next higher post without giving cause for complaints from any quarter, it was only appropriate that he was granted the WPC 37809/2008 6 benefit of the second ACP also, on completion of the stipulated period of service. Therefore we find no infirmity in the direction issued by the CAT to grant him the second ACP with effect from 30.5.2005. In the above view of the matter this writ petition fails and is accordingly dismissed. Sd/K. SURENDRA MOHAN Judge Sd/P.V.ASHA Judge jj /True copy/ WPC 37809/2008 7