SUMIT KUMAR GHOSH REGT NO 863090280 SI/RO vs UNION OF INDIA MINISTRY OF HOME AFFAIRS & ANR.

$~45
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 06.03.2025
+ W.P.(C) 11246/2021
SUMIT KUMAR GHOSH REGT NO 863090280 SI/RO
…..Petitioner
Through: Mr.Naushad Alam and Ms.Ruchika Yadav, Advs.
versus
UNION OF INDIA MINISTRY OF HOME AFFAIRS & ANR.
…..Respondents
Through: Mr.Vikram N. Goyal and Mr.Nitin, Advs.

CORAM:
HON’BLE MR. JUSTICE NAVIN CHAWLA
HON’BLE MS. JUSTICE SHALINDER KAUR

NAVIN CHAWLA, J. (ORAL)
1. This petition has been filed by the petitioner, praying for the following reliefs: –
“(i) Issue a Writ in the nature of certiorari or other suitable writ or order or direction thereby setting aside/quashing the letter dated 12.03.2021 (ANNEXURE P/10);
(ii) Issue a Writ in the nature of mandamus or other suitable writ or order or direction thereby commanding the Respondents to grant first financial up gradations to the Petitioner under Office Memorandum (ACP) bearing No. 35034/1/97-Estt.(D) dated 09.08.1999 in the Pay Scale of 4000-100-6000 on the day ACP came into force (i.e. 09.08.1999) taking his service from the date of his initial appointments as CT/GD;
(iii) Issue a Writ in the nature of mandamus or other suitable writ or order or direction thereby commanding the Respondents to grant Pay Scale of NK/RO w.e.f the date of reporting the ORL, Gde III Course (i.e. 26.09.1988);
(iv) Issue a Writ in the nature of mandamus or other suitable writ or order or direction thereby commanding the Respondents to grant 2nd MACP on 26.09.2008 in Pay Band/Scale of 9300-34800 with Grade Pay of 4200 and third MACP on 26.09.2018 with consequential increment/fixation under 7th Central Pay Commission; OR
(v) Issue a Writ in the nature of mandamus or other suitable writ or order or direction thereby commanding the Respondents to fix the pay of the petitioner in the manner detailed under Ground D of the present petition;
(vi) Issue a Writ in the nature of mandamus or other suitable writ or order or direction thereby commanding the Respondents to pay the arrears of pay and other benefits and refix the pay which the petitioner is entitled to.”

2. The learned counsel of the respondents submits that since the petitioner was promoted to the post of NK (RO) on 10.08.1989, his service for the purposes of the ACP and the MACP benefit must be counted from the said date.
3. We are unable to accept the above submission. This Court has already considered and rejected the said submission in its Judgment dated 29.01.2016 passed in W.P.(C) 388/2015 titled as Om Prakash & Ors. v. Union of India & Ors, holding as under:
“’14. The only issue which now arises is what is the effect of some of the writ petitioners, such as Om Prakash, the writ petitioner of W.P.(C) No.388/2015, being re-mustered to the rank of Naik or in the cadre of driver trade or in the cadre of radio operator. As per learned counsel for the respondents the 24 year period of service has to be reckoned from the date they were re-mustered and not from the date they joined service initially.
15. Hitherto fore, between the rank of a Constable and a Head Constable there were two posts of Lance Naik and Naik, which posts were subsequently abolished and merged with that of a Head Constable.
16. Now, the department itself is not considering, the appointment given to Constables on re-mustering as Naik or a Lance Naik as a case of promotion, and thus we see no logic to reckon 24 years’ service from the dates noted hereinabove when some of the petitioners and the late husbands of the writ petitioners of W.P.(C) No.l717/2015 were re-mustered,”

4. Review against the above Judgment was also dismissed by this Court, vide its Judgment dated 29.01.2016, holding as under:
“12. We have considered the rival contentions of the parties and on going through the documents and OM relied upon by the parties, it is clear that clarification No. 4, 5 and 6 relied upon by the respondents are not applicable in the present case whereas clarification No.1 squarely covers the case of the petitioners for the reason the petitioners were appointed as Constable (GD) in the CRPF and were thereafter remustered as Naik RO. However, in the year 1997 the post of Naik RO was merged in the rank of Head Constable (RO) and as per clarification No.1 of DOPT’s OM dated 10.02.2000 it has been clearly spelt out ‘since the benefit of upgradation under the ACP Scheme are to be allowed in the existing hierarchy, the mobility under the ACP Scheme shall be in the hierarchy existing after merger of pay scales by ignoring the promotion. An employee who got promoted from lower pay scale to higher pay scale as a result of promotion before merger of pay scale shall be entitled for upgradation under the ACP Scheme ignoring the said promotion as otherwise he would be placed in a disadvantageous position vis-a vis the fresh entrant in the merged grade. Thus a bare perusal of the above clarification clearly shows that upgradation under the ACP Scheme are to be allowed in the existing hierarchy. After 1997 the hierarchy prevalent in CRPF is that of Constable (RO) and then Head Constable (RO). As of today there is no post of Naik RO. Not only this, the clarification further clarifies that an employee who got promoted from a lower pay scale to a higher pay scale as a result of promotion before merger of pay scales shall be entitled for upgradation under the ACP Scheme ignoring the said promotion. Meaning thereby that in the present case the petitioner was appointed as Constable (GD) and was thereafter re-mustered as Naik RO in a higher pay scale but however, in year 1997 the post of Naik RO was merged with that of Head Constable (RO). Therefore, as per the clarification the re-mustering to the rank of Naik RO is required to be ignored for grant of ACP. As far as the judgments relied upon by the respondents is concerned the same do not deal with the issue in hand and therefore are of no consequence to the present case.”

5. The Special Leave Petition against the above Judgment, being SLP (C) No.24453-24458/2016, titled UOI v. Om Prakash, has recently been dismissed by the Supreme Court vide its Order dated 12.12.2024.
6. Accordingly, we direct the respondents to consider the case of the petitioner for the grant of the ACP and the MACP benefits in accordance with the above Judgments, taking into account petitioner’s initial appointment to the rank of Constable (GD), that is, 01.03.1986.
7. The respondents shall issue consequential orders in implementation of the above, within a period of 12 weeks from today. If the petitioner is found eligible for the grant of the ACP and the MACP benefits, not earlier granted or to be granted from a prior date, the arrears of the same shall be paid to the petitioner within a period of six weeks from the said decision. In case the arrears are not paid within the time so granted, the respondents shall pay to the petitioner interest at the rate of 8 % per annum for the period of delay.
8. With the above direction, the petition is disposed of.

NAVIN CHAWLA, J

SHALINDER KAUR, J
MARCH 6, 2025/sg/DG
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W.P.(C) 11246/2021
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