Ashim Kumar Banerjee, J.@mdashPetitioner was working in the Fire Wing of RPF prior to 2006. Petitioner No. 1 completed twenty-four years service in RPF on October 1, 1999 and thus became entitled to at least two ACP benefits in lieu of promotion, if not already granted. Others completed the said period subsequently. On September 6, 2006 the Fire Wing of RPF was permanently closed and the staff working therein were absorbed in other Railways including Metro Railway. He subsequently got promotion in the post of Leading Fireman having the scale of Rs. 3200/- - 4900/-. In 2006 Metro Railway absorbed him on the option being exercised by him as Fireman. The petitioner No. 1 retired on superannuation with effect from December 31, 2010. The petitioners made a grievance that they were not given the second ACP benefit after completion of twenty-four years service in RPF appropriately. The petitioners claimed, they should have been awarded the scale of Rs. 5500/- - 9000/- as higher scale in the next post of Operation staff in Metro Railway.
2. In the backdrop as above, petitioners approached the Tribunal by filing O.A. No. 734 of 2005. The Tribunal disposed of the said application on April 5, 2006. Tribunal passed an order directing the respondent to complete all formalities in connection with grant of second financial upgradation/ACP benefit. The authority did not act upon the said order resulting in a contempt proceeding being brought before the Tribunal. The authority, subsequently, asked the petitioners to appear for a Written Test on April 7, 2007 for extension of the second ACP benefit in the pay scale of Rs. 4000/- - 6000/-. Petitioners lodged their protest on two counts -
i) The ACP benefit was an automatic process and holding of Written Test for grant of such benefit was without any authority of law.
ii) They were entitled to the scale of Rs. 5500/- - 9000/- and not Rs. 4000/- - 6000/- as erroneously offered by the respondents.
3. They approached the Tribunal again by filing O.A. No. 270 of 2007. The respondent authority resisted the same by contending that they were given appropriate scale of Rs. 4000/- - 6000/- applicable to Artisan category as they were closed to the same. The petitioners contended, they were fire fighting operational staff and could not be equated with Artisan who were entrusted with different nature of work to be performed. The Tribunal disposed of the application vide judgment and order dated March 18, 2011 by observing that the said application lacked merit. The authority already offered them the second ACP benefit. The applicants refused to appear at the Trade Test to qualify for the same. The Tribunal directed the authority to give them another opportunity to appear at the test. Being aggrieved, the petitioners approached us by filing the instant application that was heard by us on the above mentioned dates.
4. Mr. Asit Kumar Banerjee, learned counsel appearing for the petitioners contended as follows :-
i) The petitioner being Operational Staff could not be equated with Artisan. Hence, they could not be extended the same pay scale.
ii) The ACP benefit was an automatic process that did not require any selection process.
5. Elaborating his submission Mr. Banerjee contended that the Artisan were allotted duty to drive the fire fighting vehicle as well as filling up of water tank whereas the petitioners were entrusted to fight with the fire for rescue operation as well as extinguishing fire. The nature of duty was absolutely different. Petitioners were working as Leading Fireman. Hence, they should be given the next higher scale in the post of Fire Supervisor that was the next promotional post for them. The petitioners disputed the contention of the respondents that the next higher post would require a better qualification for promotion. The petitioners contended that no such specific qualification was prescribed for the next promotional post. The petitioners cited instances where promotions were granted in Chittaranjan Locomotive Works giving the desired scale. Mr. Banerjee contended, once the Railway extended the benefit in Chittaranjan Locomotive Works there was no reason why it would be refused in Metro Railway. In this regard he relied upon a decision of the Apex Court in the case of G.C. Ghosh And Others -VS- Union of India And Others reported in 1991 Supplementary Volume-II Supreme Court Cases Page-497.
6. On perusal of the said decision we find that the employees in North Eastern Railway were granted benefit. The Apex Court asked the Eastern Railway to extend the identical benefit to their employees working in the identical post. The Apex Court, while extending such benefit, observed that unless there was any distinguishing feature there could not be any different treatment. In this regard Mr. Banerjee relied on paragraph 15 and 16 of the petition.
7. On the Trade Test Mr. Banerjee contended that there was no such procedure for holding any Trade Test for the purpose of grant of ACP benefit.
8. Mr. Asit Banerjee, relied upon the decision in the case of
9. Opposing the application Mr. Ashim Ganguly, learned counsel appearing for the Metro Railway contended that the Fire Wing of the RPF was closed and the petitioners were declared surplus. They were absorbed in Metro Railway. As per Railway Protection Force Circular dated August 16, 1999 the petitioners were obliged to appear at the Trade Test to qualify for second ACP benefit. The petitioners declined to appear at such test. Hence, the Metro Railway could not extend the benefit of second ACP. With regard to the scale, Mr. Ganguly contended that as per ACP Scheme the petitioners were entitled to the next higher scale and not the higher post. Accordingly, they were given the next higher scale of Rs. 4000/- - 6000/- that was eventually a scale also attached the post of Artisan. The question of making a comparative study of nature of work would be of no consequence. He relied on paragraph 10 of the Affidavit-in-Opposition where the Railway made their stand clear as above.
10. We have considered the issue. In fact one of us (Ashim Kumar Banerjee,J.) very recently holding the Circuit Bench at Port Blair decided the identical issue in W.P.C.T No. 1189 of 2011 (S.P. Nagarajan -VS- Union of India & Ors. ) dated November 23, 2011. In an identical circumstance, the petitioner therein claimed ACP benefit. He was given the next scale. He claimed that the next scale given to him was a scale attached to the post of Oilman whereas he was working as regular Mazdoor in Maintenance Department being entitled to the next promotion in the post of Lineman, a Group-C post attracting a better pay scale. The Division Bench decided the issue and held that promotion was against higher post whereas extension of ACP benefit was for immediate higher scale. Those two aspects could not be equated. Three paragraphs of the said decision are -
We have considered the rival contentions. In our view, the grievance of the petitioner was rather misplaced. He was fighting a non-issue. He unfortunately mixed up the issue of promotion along with ACP scheme. It was not the case of the petitioner that he was not extended a better scale than the earlier one. Scale extended to him in 1999 was admittedly in the next higher scale than the scale that was being enjoyed by him. Hence, there was appropriate compliance of the ACP scheme.
The post of Lineman could be filled up through promotion in respect of 75% and direct recruitment to the extent of 25%. The petitioner had the appropriate qualification to compete for the said post in promotional quota. It was rather a better option to the eligible candidates who by their better performance would get such post that was a group-C post and for all practical purposes was considered to be a jump promotion. Petitioner appeared at the said test and became unsuccessful. Thereafter, he refused to participate for the post twice.
Mr. Prasanth contended before us that the recruitment rule did not provide any trade test for the post of Lineman. We fail to appreciate his argument. As observed hereinbefore, it was a jump promotion for all practical purposes as the post was not only a group-C post but also would attract a better pay scale than the usual higher scale. Hence the selection committee must consider each and every eligible candidate before giving them the promotion. It was a promotion on merit. Hence there must be some kind of selection process to find out the fittest one.
11. The petitioners were declared surplus in RPF in 1999. From time to time they became entitled to the second ACP benefit in lieu of promotion as they either could not get any promotion for want of vacancy or could not be considered for promotion in absence of appropriate promotional avenue. Hence, they became automatically entitled to the second ACP benefit on the expiry of twenty-four years of service. On that score there could not be any disagreement. The petitioners raised two issues. On the issue of better pay scale, we feel that petitioners'' grievance was misplaced like Nagarajan. When they would be considered for promotion they would definitely be considered for the next higher post in the hierarchy having the identical channel of promotion. Once they became successful in such process the ACP benefit, if any, got in the mean time would be adjusted against such promotion, meaning thereby, the ACP benefit would be discontinued and the promotional benefit would be given to the concerned employee. ACP Scheme was framed as per the observation of the Apex Court in various decisions in late 1980s when Apex Court deprecated the practice of the public offices in keeping their employees stagnated in a post for decades. Either they could not get promotion being unsuccessful for want of vacancy or otherwise or they were not considered for promotion at all as the channel of promotion was blocked. The Apex Court observed that a service career being a substantial part of one''s life must have chance of development. An employee was entitled to develop his life and advance in the working field and should not be allowed to stagnate. To avoid stagnation, it was suggested that the next higher scale should be given on a periodic intervention as suggested by those decisions. Later on the Central Government as well as State Governments framed various schemes giving extension of such benefit on a periodic interval of 10/12 years. Such benefit is usually given on fixed interval to the next higher scale to be adjusted against a future promotion, if any, received by the concerned employee. To cut short, it is an automatic process as and when concerned employee reached such optimum level of length of service rendered in a particular post.
12. In the instant case the petitioners became entitled to the second ACP benefit on completion of twenty-four years'' service and twelve years of service after the first ACP being availed. Hence, he would automatically be entitled to the next higher scale. The next higher scale was Rs. 4000/- - 6000/-. The authority rightly offered him such scale. It might be a mere coincidence that such higher scale was available to the Artisan that eventuality would however not equate them with the Artisan. They would remain the leading Fireman, however with a better pay scale than their colleagues working in the said post. Once they are considered for promotion and ultimately get promotion they would definitely get the post of Fire Supervisor being the next promotional post having a different pay scale attached to the said post and ACP would eventually be discontinued being adjusted against such promotion. The petitioners'' grievance on the pay scale is thus not tenable and as such is rejected.
13. We are however in total agreement with the second grievance made by the petitioner. As observed hereinbefore, ACP benefit is an automatic process and does not require any particular selection process to undergo. The Railway, in our view, was not entitled to ask them to appear at the Trade Test to get such particular scale as and by way of ACP benefit. The Railway also mixed up the issue of promotion with the ACP. One would get the ACP benefit as an automatic process after he completes a particular tenure required therefore. Once the petitioners get the next higher scale they would still be obliged to appear at the Trade Test as and when asked for when they would be considered for promotion. In a promotional process particularly when it was on merit basis the authority would be entitled to compel the eligible candidates to undergo selection process, if someone refuses he would not be considered for promotion. Since ACP is linked up with promotion, on such refusal to participate in the selection process in the promotional post, the authority would also be entitled to recall the benefit. We however make it clear that participation was enough to continue to get such benefit. It was not important whether the concerned candidate would be successful in such process or not. One may not be successful in selection process that would debar him to get the promotional post. So long he participates in selection process for the promotional post conducted by the employer, he would continue to get the ACP benefit until he is given the promotional post that would be adjusted against such ACP. The petitioners would thus not be required to appear at the Trade Test. If any scheme provides so that would be contrary to the Apex Court decision and/or observation referred to above.
14. The application thus succeeds in part. The order of the Tribunal upholding the scale of Rs. 4000/- - 6000/- is upheld. The Tribunal''s decision to ask the Railways to conduct a Trade Test for consideration of extension of ACP benefit is quashed and set aside. The Railway is directed to extend the ACP benefit as an automatic process in the next higher scale of Rs. 4000/- - 6000/- or any corresponding scale in case any revision is made in between.
15. The petition is disposed of accordingly without any order as to costs.
16. Urgent Photostat copy will be given to the parties, if applied for.
Shukla Kabir (Sinha), J.
17. I agree.
