Premji Polajibhai Vadecha V. Union of India

SCA/5325/2015

AI Insights

The case involves Premji Polajibhai Vadecha, a former employee of the Railway Protection Force, who challenged the reduction of his pay-scale from Rs. 3200-4900 to Rs. 3050-4590 effective from April 1, 2000. The petitioner argued that his pay was not fixed according to the rules and sought re-fixation of his pay-scale under the ACP and MACP Schemes upon completion of 12, 24, 10, 20, and 30 years, respectively. The respondent, Union of India, contended that the petitioner was not eligible for the higher pay-scale as he did not meet the promotion criteria and his performance was consistently rated below average. The court dismissed the petition, agreeing with the respondent's stance.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 703231 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 25-07-2018
• Assessment Year: misc
• Other Referred Cases: Tribhuvan Singh vs. Divisional Secretary Commissioner and Ors, Prabhu Dayal Khandelwal vs. Chairman, UPSC & Ors
• Laws Referred To: Article 226, Article 227
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: RAVI KARNAVAT
• Assessee Lawyers: ANAND GOGIA; B B GOGIA; KAJAL KALWANI
• Keywords: Compulsory retirement; Pay fixation; Assured Career Progression Scheme; Modified Assured Career Progression Scheme; Financial up-gradation
• Section: 3050-4590; 3200-4900

Judgement Text

"C/SCA/5325/2015 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 5325 of 2015 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE ANANT S. DAVE and HONOURABLE MR.JUSTICE BIREN VAISHNAV =============================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? =============================================== PREMJI POLAJIBHAI VADECHA Versus UNION OF INDIA =============================================== Appearance: MR ANAND B GOGIA(5849) for the PETITIONER(s) No. 1 MR BB GOGIA(5851) for the PETITIONER(s) No. 1 MS KAJAL L KALWANI(6623) for the PETITIONER(s) No. 1 MR RAVI KARNAVAT(1650) for the RESPONDENT(s) No. 1,2 RULE SERVED(64) for the RESPONDENT(s) No. 1,2 =============================================== CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE and HONOURABLE MR.JUSTICE BIREN VAISHNAV Date : 25/07/2018 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) Page 1 of 8 C/SCA/5325/2015 JUDGMENT 1. The challenge in this petition under Article 226 and 227 of the Constitution of India by the petitioner is to the effect that his pay fixation was not made in accordance with rules and his pay fixation was revised and reduced in pay-scale of Rs.3050-4590 from 3200-4900 w.e.f. 1.4.2000 without any valid basis and, therefore, the respondent authority be directed to refix pay-scale of the petitioner including higher pay-scale available under relevant Assured Career Progression Scheme (For short “ACP Scheme”) upon completion of 12 and 24 years and in Modified Assured Career Progression Scheme (for short “MACP scheme”) on completion of 10, 20 and 30 years. 2. Based on service record of the petitioner by and large remained undisputed about his entry into service in the Railway Protection Force as a Constable on 1st November, 1977 and thereafter the petitioner remained out of service for the period from 24.12.1982 to 9.5.1999, except for few days in between for the reason according to the petitioner he was ordered to be removed from service by order dated 24th December, 1982. 3. That the above order was challenged by filing Regular Civil Suit No.570 of 1983 which was finally decided and decreed on 27.9.1988. However, in absence of any challenge to the above decree of Civil Court by the respondents, the petitioner came to be reinstated on 25.10.1988 and thereafter on the next date i.e. 26.10.1988 fresh order was passed whereby the petitioner was retired compulsorily. Again, challenge was made by filing Regular Civil Suit No.1176 of 1988 before learned Civil Judge (SD), Rajkot which came to be dismissed. Being aggrieved and dis-satisfied by such judgement of Civil Judge, Regular Civil Suit No.23 of 1991 was filed by the petitioner which came to be Page 2 of 8 C/SCA/5325/2015 JUDGMENT allowed on 10.3.1999 and against which 2nd appeal No.108 of 1999 and 55 of 1999 filed by both the parties also came to be dismissed by this Court on 27.6.2011. 4. Upon reinstatement of the petitioner in the parent division namely, Rajkot, he was ordered to be transferred to Ratlam Division of Chief Security Commissioner, Western Railway, Mumbai and from there he was deputed for re-orientation course in fire service which was completed by the petitioner. Later on, the petitioner was transferred back to Rajkot Division and thereafter was transferred at different places at short intervals. 5. Apart from the above facts, with regard to permissible pay- scale and increments, it appears that pay was fixed in scale of Rs.3050-4590 w.e.f. 10.5.1999. Though increments withheld for 6 months without future effect as per order dated 31.7.2000 and thereafter he was put back in the pay-scale of Rs.3125. However, he was found suitable for financial up-gradation to the pay-scale of Head Constable in the scale of 3200-4900 w.e.f. 1.4.2000. On ad-hoc basis the petitioner came to be promoted to officiate as Head Constable in the scale of 3200-4900 upon successful completion of pre-promotion course and accordingly, resumed the duty as Head Constable on 25.9.2002. He was declared unfit by the competent authority and was reflected to the post of constable w.e.f. 25.9.2002 that is the date on which earlier he was promoted as a Head Constable. The record further reveals that since he remained on leave without pay, increment came to be withheld for two years without future effect with the order dated 24.3.2003. Upon filing the appeal by the petitioner it was reduced to stoppage of increment only for a period of 6 Page 3 of 8 C/SCA/5325/2015 JUDGMENT months as per order dated 25.9.2003. The competent authority placed the petitioner under suspension by order dated 25.9.2003 which came to be revoked on 11.11.2003. Since the petitioner was compulsory retired by the competent authority, an appeal was preferred before the appellate authority which had set aside the order of compulsory retirement dated 28.2.2004 and punishment of stoppage of increment for a period of one year without future effect was introduced and the period of suspension was treated as such on duty. As a consequence the pay-scale of the petitioner was re-fixed in the scale of 3050- 4590. With other punishment of withholding increment of the petitioner w.e.f. 1.7.2004 without future effect by different orders also remained un-disputed. 6. In the above backdrop of factual scenario contentions are raised by Ms. Gogia, learned advocate appearing for the petitioner that as per MACP Scheme if a regular promotion has been offered and even if it is refused by the employee before becoming entitled to a financial up-gradation, no financial up- gradation shall be allowed. As such an employee has not been stagnated due to lack of opportunities but in case financial up- gradation has been allowed due to stagnation and the employees subsequently refuse the promotion, it shall not be a ground to withdraw the financial up-gradation and he shall however not be eligible to be considered for further financial up-gradation till he agrees to be considered for promotion again and second the next financial up-gradation shall also be differed to the extent of period of debarment due to refusal. 6.1. It is next contented that certain informations were not available with the petitioner and application were filed under Page 4 of 8 C/SCA/5325/2015 JUDGMENT Right to Information Act and upon receiving such information the petitioner came to know that he was wrongly denied benefits of ACP Scheme and MACP Scheme and, therefore, filed this writ petition with a prayer that communication received from the respondents dated 17.7.2014 denying him of the benefits finally deserves to be quashed and set aside and respondents be directed to calculate and re-fix the pay of the petitioner in the pay-scale of 3200-4900 from the stage when his pay fixation is refused and reduced to the pay-scale of Rs.3050-4590 and accordingly consequential correction be made for further entitlement for receiving benefits of ACP Scheme and MACP Scheme. Thus, according to the petitioner there is no delay in filing writ petition towards the claim of grade pay fixation, up- gradation etc. 7. Mr. Karnavat, learned advocate appearing for respondent- authorities has heavily relied on affidavit filed by Senior Divisional Security Commissioner/Railway Protection Force (Western Railway), Ahmedabad and submitted that the petitioner was directed for medical examination before proceeding for promotional post and since he was declared unfit by the competent authority vide certificate dated 6.11.2002 for training of pre-promotion post of Head Constable and he came to be reflected as Constable on 25.9.2002. At the same time the petitioner was granted the benefits of Assured Career Progression Scheme w.e.f. 1.4.2000 but due to his inability to undergo promotion course his benefit of ACP came to be withdrawn w.e.f. 1.4.2000. Likewise, he was also found unfit for granting the benefits of MACP Scheme by the screening committee who found annual grading of the petitioner as below average. The essential requirement of passing of promotional Page 5 of 8 C/SCA/5325/2015 JUDGMENT post for regular promotion was not fulfilled. According to learned advocate for the respondents reliance placed on Clause 25 of ACP Scheme is mis-placed since the petitioner was not promoted regularly but on ad hoc basis as a Head Constable. That promotion as Head Constable was purely ad hoc and subject to pre promotional post and, therefore, the petitioner who was found below average by the screening committee which consistently awarded rating of the petitioner as below average from year 2003 to 2010 and even integrity of last 5 years mark was that he was required to be kept under watch. It is submitted that overall conduct of the petitioner who was compulsory retired from service w.e.f. 31.3.2011 was tainted and whenever it was found that punishment was harsh or dis-proportionate to the mis-conduct the authority has reduced the punishment and accordingly pay was fixed but under no circumstances he was found eligible to receive pay-scale of 3200-4900. Our attention is invited to reply and rejoinder filed by learned advocates appearing for the parties in this writ petition. 8. Learned advocate for the petitioner has placed reliance on decision reported on 2.12.2016 in Special Civil Application NO. 3827 of 2013 in the case of Tribhuvan Singh vs. Divisional Secretary Commissioner and Ors. where adverse remarks were not communicated and claim of the petitioner was not considered based on report of the screening committee. Another decision was that of Prabhu Dayal Khandelwal vs. Chairman, UPSC & Ors reported in 2015 (14) SCC 427, in which the record of the petitioner barring a few entries were found which remarks “Very Good” and was declared to be entitled for promotion to the post of Chief Commissioner of Income Tax. Page 6 of 8 C/SCA/5325/2015 JUDGMENT 9. Having given our thoughtful consideration to the submissions made by learned advocate appearing for the parties respectfully at the outset we find that the petitioner has remained indolent for about 4 years and his service came to an end and now efforts are made to resurrect the dead issue about his claim towards ACP and MACP based on subsequent information received under RTI Act. We are not persuaded by the arguments of learned advocate for the petitioner to the extent that an employee who is given promotion on ad hoc basis and though lacks requisite qualification or fulfills the criteria for grant of ACP or MACP no change or modification or withdrawal be permitted by the authority. In the present case as per the record and affidavits filed by the competent authority the petitioner has not successfully completed pre-promotional training/course and once he was found eligible to receive pay- scale of Rs.3200-4900 was reduced only on the ground that upon filing an appeal before the appellate authority while challenging the order of compulsory retirement appeal was allowed by quashing and setting aside order of compulsory retirement dated 28.2.2004 substituted by the punishment of stoppage of increment for the year without future effect was imposed and the suspension period was treated as on duty. As a result thereto ACP scale of Head Constable in the pay-scale of Rs.3200-4900 was reduced and pay was re-fixed in the pay- scale of Rs.3050-4590 such an action of the authority is not contrary to the scheme of Assured Career Promotion or Modified Assured Career Progression Scheme. Once the basis of reduction of pay-scale of the petitioner is found to be in accordance with scheme and relevant rules subsequent claim for higher pay-scale or next grade pay as contended by the petitioner is not available. Both the above schemes ACP and MACP have genesis in the Page 7 of 8 C/SCA/5325/2015 JUDGMENT policy framed by the authority when there is non-availability of promotional avenue and the employees remained stagnated in particular cadre /post or the post is isolated namely stand alone post. 10. In the case of the petitioner, various disciplinary actions on different occasions were taken viz. increments were withheld and compulsory retirement by way of punishment was passed. Due to indulgence of the appellate authority in interfering with the order of the competent authority of compulsory retirement was set aside. The scrutiny of the service record of the petitioner by the screening committee clearly reveal that for about 8 years he was rated to be ‘below average’ and even integrity of last 5 years for which, he was kept under watch. Therefore, case of Prabhu Dayal Khandelwal vs. Chairman, UPSC & Ors (supra) will have no applicability. So often, the petitioner refused to join at places of transfer and thus lacked merit in claiming benefits of ACP and MACP both. 11. We find no ground to interfere with such decision of the authority and accordingly the petition is dismissed. 12. Rule discharged. (ANANT S. DAVE, J) (BIREN VAISHNAV, J) NAIR SMITA V. Page 8 of 8 "