RAM NIWAS Vs. STATE OF HARYANA AND OTHERS

JUDGEMENT

(1.) THE case was directed to be disposed of along with C.W.P. No. 13857 of 2006. The said writ petition has been dismissed as withdrawn and therefore, the disposal of the said writ petition cannot be any guidance to the issues raised in this writ petition. The petitioner seeks for quashing of the order passed on 22.08.2005, 16.03.2006, 02.08.2006 (Annexures P -4, P -5 and P -8) and for a direction to the respondents to release the 2nd ACP Grade Scale of Rs. 5000 -7850 w.e.f. 23.03.2003 on his completion of 20 years of regular satisfactory service. The Engineer -in -Chief had issued the order on 22.08.2005 that Steno Typist, who had completed 20 years of service would be granted the 2nd ACP Scale only if he had satisfied the other conditions of passing departmental test of stenography required for promotion as Circle Stenographer. Referring to Rules 5 and 8 of ACP Rules of 1998, the Engineer -in -Chief had observed in the order that ACP Scales would be provided only if a Government servant had been found fit to be promoted to the next higher scale in the functional hierarchy in his cadre and if such a promotion involved any departmental test, such condition should also be fulfilled. The General Manager, Haryana Irrigation Department had also served similar circulars to all the Superintending Engineers on 16.03.2006 (Annexure P -5) that the ACP scales will be provided only on passing the departmental test of stenography. The petitioner had given a representation on 30.01.2006 pointing out to the fact that ACP Rules of 1998 had been framed by the Government and notified on 07.01.1998 and the relevant Rules that were applicable, were only rules 1, 3 and 10. His contention was that he had been directly recruited as a fresh entrant as Clerk w.e.f. 23.03.1983 and after he was promoted as a Steno Typist in the identical time scale w.e.f. 30.05.1991, the impugned letters issued by the Engineer -in -Chief could be implemented only to a Steno Typist, who was directly recruited as a fresh entrant and since the petitioner had been recruited as a Clerk as per Schedule I Part II, he was entitled for the 1st and 2nd ACP Scales as applicable to the Clerk. He, therefore, sought for withdrawal of the pay fixation done to him and to allow him to draw his pay in the 2nd ACP Scale of Rs. 5000 -7850 as already sanctioned to him under the 1998 ACP Rules. It was subsequent to this representation that an office order was passed by the Executive Engineer that his pay would be refixed at Rs. 4800 -5300. It is against this order that the petition has been filed.

(2.) THE contention of the petitioner is that prior to 01.01.1996, functional pay scale of both the posts of Clerk as well as the Steno Typist were same namely Rs. 950 -1050 except that for a Steno Typist, there was a special pay of Rs. 100 and w.e.f. 01.01.1994 they were granted the pay scale of Rs. 1200 -2040 as first higher standard pay scale after 10 years regular satisfactory service and second higher pay scale after 20 years of regular satisfactory service. The petitioner would argue that he had already been granted the 2nd ACP Scale prescribed for the post of Clerk only, the post on which he was actually appointed as a fresh entrant and he cannot be denied the 2nd ACP Scale if he continued in the same post as a Clerk. The contention is that the requirement of passing the test cannot be applied to his case since such a requirement was not being enforced in other categories of posts like Draftsmen, Tracers etc.

(3.) THE ACP Rules called the Haryana Civil Services (Assured Career Progression) Rules, 1998 mentions through Rule 5 the eligibility for the grant of ACP. It requires that every Government servant, who after regular satisfactory service for a minimum period of 10 years has not got any financial upgradation in terms of grant of pay prescribed for the post as on 31.12.1995 on which he was recruited as a direct recruitee shall be eligible for placement into the 1st ACP scale. In this case, admittedly the petitioner who was recruited as a Clerk on compassionate ground on regular basis on 21.02.1983 was put on pay scale of Rs. 400 -660, which was later revised to Rs. 950 -1500 w.e.f. 01.01.1986. When he was adjusted on the post of a Steno Typist, he was placed in the same scale of Rs. 950 -1500 and the only additional benefit which he secured was Rs. 100/ - as Special Pay till the posting of regular Steno Typist was done. It was intended to be purely on a stop gap arrangement basis. The denial to the benefit of ACP scale is stated to be on the ground that the petitioner had already earned the promotion. This argument ought to be taken as fallacious since the adjustment which the petitioner obtained on 16.10.1991 was purely as a stop gap arrangement basis and cannot be, therefore, said to be a regular promotion to higher post. He did not also secure any financial upgradation and the additional pay of Rs. 100/ - ought to be taken as Special Pay as indeed it was called, for the duties which he was performing as a Steno Typist but his functional pay continued to be Rs. 950 -1500. It is not as if the department had not known of similar situations. In the instructions issued on 08.02.1994 (Annexure P -1) while clarifying some issues arising from the application of ACP Scales, it was clarified as follows: -