ADMINISTRATOR Vs. K.P.CHERIYAKOYA

JUDGEMENT

(1.) Petitioner is the Union Territory of Lakshadweep and the 1st respondent a retired employee, the applicant, before the Tribunal. The applicant, by O.A. No.446 of 2010, sought for the relief of an Assured Career Progression [for brevity, 'the ACP'] as per a Scheme of 1999 w.e.f. 21.12.2001.

(2.) The applicant was an Electrician, who joined the petitioner/respondent-administration on 21.12.1989. He is said to have stagnated in the post for long. The stagnation is said to be the cause for claim of ACP, more specifically the pay scale applicable to Junior Engineer [Electrical]. The administration resisted the claim; but the Tribunal found that the Note appended to the Lakshadweep Electricity Department [Group C & D Technical post] (Revised) Recruitment Rules, 1997 [for brevity, 'the Recruitment Rules of 1997] provide for an exemption from educational qualification. The contention of the administration that the Note only applied to the Schedule, just before the Note, was negatived. The contention of the applicant that there was a provision existing for granting promotion to non-diploma holders as could be seen from a different pay scale for the post of JE [non-diploma holders] under the 2002- rules was upheld. The similar prayers as has been granted in favour of one K.P. Kassali, who was promoted in 1995, was also relied on. The administration's contention that Kassali's case was under a different Rule, which did not provide the educational qualifications as provided in the Recruitment Rules of 1997 for the post of JE was rejected on the ground that the administration did not produce the Rules to substantiate such a contention. It was found that the administration had misinterpreted the Rules to deny the ACP claim to the applicant. The applicant was found to be entitled to financial upgradation under the ACP Scheme. Considering the aspect of delay based on the judgment of the Hon'ble Supreme Court, the Tribunal confined the relief to be entitled only from 3 years prior to the the order of the Tribunal, ie. from 2007 onwards.

(3.) The learned Standing Counsel for the administration would contend that ACP is intended only for persons, who are entitled to be promoted to the higher post and are deprived of such promotional avenue for reason of dearth of vacancies or any other contingency. A person, who does not have the necessary qualification to be considered for promotion to the higher post, would not be entitled for such financial upgradation as per the ACP Scheme. The argument before the Tribunal that the Note does not apply to Schedule I to III has not been pressed. It was argued that the Note specifically speaks of the promotees, who are in position as on the date of promulgation of the Recruitment Rules, 1997. The necessary qualification for promotion to the post of JE [Electrical] is either a degree or a diploma. It is specifically pointed out from the Rules that for departmental promotions, age is not a constrain, but the qualifications are applicable. The applicant is not entitled to be considered for the post of JE and hence he is not entitled to the ACP also. It is contended that the very argument of the applicant was that the feeder category for promotion to the post of JE by the 5th Pay Commission had similar pay scale as is applicable to the Electrician's post. The contention also is that hence the post of Electricians should be treated as a feeder category for promotion to the post of JE. This cannot be countenanced, since by mere up-gradation of pay scale, there is no equation of posts. It is contended that even when the subsequent Rules where promulgated, wherein there was a clear merger or equation of posts and an Electrician too became entitled to be considered for promotion, the educational qualification for the post of JE (Electrical) was retained and the exemptions were made more stringent. The applicant even then would not be qualified for consideration for promotion to the post of JE(Electrical). It is submitted that the applicant has been granted the benefit as per a modified ACP Scheme. There cannot be any consideration of the claim made in the O.A; asserts Sri. T.V. Vinu, the learned Standing Counsel.