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SAM JOSE, NO.874340321 CONST v. THE COMMANDANT, CENTRAL; INDUSTRIAL - WP(C) No. 39398 of 2003(M)  RD-KL 2572 (5 December 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMWP(C) No. 39398 of 2003(M)
1. SAM JOSE, NO.874340321 CONST,
2. V.C.S.NAIR, NO.753460146 HC/GD,
3. KALYAN AIND, NO. 753340116,
4. P.C.KURUP, NO. 723450072 HC/GD,
5. K.N.RAO, NO. 854503524 CONST.,
1. THE COMMANDANT, CENTRAL; INDUSTRIAL
2. DIRECTOR GENERAL OF CISF., CISF HEAD
3. UNION OF INDIA, REPRESENTED BY THE
For Petitioner :SRI.M.RAJAGOPALAN
For Respondent :SRI.SAJEESH.K.B., ADDL.CGSC
The Hon'ble MR. Justice KURIAN JOSEPH
O R D E R
KURIAN JOSEPH, J.W.P. (C). NOS. 39398 OF 2003, 2904, 6344, 7497, 37419 & 37660 OF 2004, 6551, 6719, 6724, 9676, 32078, 32322 & 34882 OF 2005 & 1407 OF 2006
Dated this the 5th day of December, 2006
J U D G M E N T
The issue raised in these writ petitions pertains to the eligibility of the petitioners for the benefit of upgradation of pay under the Assured Career Progression Scheme for the Central Government civilian employees. The scheme has been implemented with effect from 9th August 1999. However, the benefits granted to the petitioners herein have been sought to be recovered on the ground that the petitioners did not fulfill the conditions attached to the grant of benefits. Ext.R1(a) produced in W.P.(C). No. 39398/03 is the scheme. Learned Assistant Solicitor General submits that in the case of those who have not been detailed for promotion cadre course and given financial benefits under the ACP Scheme, if they refuse to undergo promotion cadre course or if they fail to qualify the promotion cadre course, the financial upgradation earlier given to them would be stopped from the date of his unwillingness/result of failure. The contention is that steps have been taken to effect the cancellation/recovery since the WPC NO.39398/03 & Conn. Cases Page numbers petitioners were either unwilling to be detailed for promotion cadre course or because they have failed to qualify.
2. The contention of the petitioners is that only if they failed to qualify in three chances, any steps could be taken for recovery. Be that as it may, it is seen that during the pendency of the writ petitions, the CISF has issued Circular No.ESTT.1/37/05 dated 19.10.05. The opening Para. of the Circular (Ext.P6) reads as follows: "It has been experienced in the recent past that the personnel, irrespective of any rank as and when detailed for promotion cadre course, submit their unwillingness to attend the same on one pretext or the other..."Thus, in order to remove the difficulties experienced by the personnel, the Circular was issued. It is seen from the Circular that those who have already availed three chances and yet not qualifed, a fourth chance is given. It is also clarified in the Circular that non-attendance of one promotion cadre course on the basis of unwillingness will entail loss of one chance. The contention of the learned Assistance Solicitor General is that the Circular is only prospective. I am afraid the contention cannot be appreciated. The very purpose of the circular, as stated in the opening paragraph, is to clarify the scheme. If it is a clarification, necessarily the clarification is of the scheme as it stood originally. Clarifications to be operated retrospectively with effect from the WPC NO.39398/03 & Conn. Cases Page numbers date of operation of the scheme itself, which is sought to be clarified. Even otherwise it is clear from the clarifications that the same applies to those personnel, who have already availed even three chances.
3. In that view of the matter, it is not necessary for this Court to go into the individual merits of each case since the respondents have to consider afresh the matter in the light of the Circular. In the process, it will be noted that in case the personnel have passed the test within the permitted four chances in view of the clarification as above, the benefits cannot be cancelled or recovered. In order to have a fresh look as above, the impugned orders in all these cases are quashed, without prejudice to the liberty to the competent authority to pass the required orders in the light of the Circular referred to above. The writ petitions are disposed of as above.
KURIAN JOSEPH, JUDGEvps WPC NO.39398/03 & Conn. Cases Page numbers
KURIAN JOSEPH, JUDGEOP NO.
WPC NO.39398/03 & Conn. Cases Page numbers 5th DECEMBER, 2006
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