IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.8746 of 2025 Decided on: 26th May, 2025 ------------------------------------------------------------------------------------- Vinod Kumar Sharma …..Petitioner Versus State of H.P. and another .....Respondents ------------------------------------------------------------------------------------- Coram Ms. Justice Jyotsna Rewal Dua Whether approved for reporting?1 For the Petitioner: Mr. Nikhil Katwal, Advocate. For the Respondents: Mr. Rajat Choudhry, Assistant Advocate General. ------------------------------------------------------------------------------------ Jyotsna Rewal Dua, Judge Notice. Mr. Rajat Choudhry, learned Assistant Advocate General, appears and waives service of notice on behalf of the respondents. With the consent of learned counsel for the parties, the matter is heard at this stage. 2. Petitioner is serving as Superintendent Grade-I at Government Degree College Jaisinghpur, District Kangra. He preferred a representation (Annexure P-5) to respondent No.2-Director of Higher Education, Himachal Pradesh, seeking financial upgradation under the New Assured Career Progression Scheme (4-9-14) on completion of 04 1Whether reporters of print and electronic media may be allowed to see the order? Yes. 2 and 09 years of service with effect from due dates. His representation was rejected on 11.02.2025 (Annexure P-6). Feeling aggrieved, petitioner has preferred this writ petition seeking direction to the respondents to grant him financial enhancement/upgradation under the New ACPS on completion of requisite years of service with all consequential benefits. 3. Petitioner had represented with his grievance to the Director of Higher Education, Himachal Pradesh. His representation was rejected by the Superintendent, Directorate of Higher Education, Himachal Pradesh. This is something very strange. It is not for the Superintendent, Directorate of Higher Education to reject the representation of an employee, seeking the benefit of New ACPS on completion of requisite number of years of service. Even the reasoning given in the aforesaid order for rejecting petitioner’s representation is contrary to the decision rendered in Sanjay Kumar Vs. State of HP and Ors.2. The Superintendent, Directorate of Higher Education has rejected petitioner’s representation for the following reason:- “Here, it is relevant to mention that Govt. vide letter dated 05.04.2024, it has clearly been mentioned therein that the re-revision of pay structures w.e.f. 2 CWPOA No.5536 of 2020, decided alongwith connected matters on 01.11.2023 3 01.10.2012 shall be treated as financial enhancement. Similarly, in the instructions dated 07.07.2014, it has been clearly indicated that an employee who has already got three enhancements/financial upgradation i.e. grant of progression under the new or old ACPS, or promotion or any other financial enhancement except the annual increment or the general pay revision based on the pay commission, shall not be entitled to any benefit under ACPS. In view of above, the ACP benefit cannot be allowed by ignoring the benefit of re-revision 2012. Hence your request cannot be acceded to.” Firstly, it is noticed that petitioner in his representation had clearly stated that he has not been granted any financial upgradation either on completion of 4 or 9 or 14 years of service. It was for the respondents to have verified the facts before rejecting petitioner’s representation on the ground that an employee, who has already got three financial upgradations, is not entitled to any other financial enhancement. Secondly, petitioner’s representation has been turned down also on the ground that the benefit under the New ACPS cannot be allowed to him by ignoring the benefit of re-revision, 2012 as per the instructions/directions of the Government. 4. The aforesaid reasoning is absolutely in breach of the decision rendered in Sanjay Kumar2. The question for determination before the Hon’ble Division Bench in Sanjay Kumar2 was as to whether pay revision or grant of Grade Pay vide order dated 01.10.2012 can be termed to be 4 a financial upgradation, so as to deny the financial upgradation under ACPS. Whether, benefit of 14 years of service under the new ACPS can be denied on account of enhancement of Grade Pay under the Government Order (Pay Revision) effected on 01.10.2012. Hon’ble Division Bench on the basis of circular dated 07.07.2014 held that annual increment or general pay revision shall not be considered as financial upgradation for the purpose of benefit, if any, under the new ACPS. Consequently, the Court found merit in the claim of the petitioners that they are entitled to the benefit of 3rd financial upgradation on their completing 14 years of service despite receiving the enhancement of Grade Pay under the Government Order dated 01.10.2012. Relevant observations and conclusion drawn in the aforesaid judgment are as under:- “7. Having heard learned counsel for the parties and perused the material available on record, this Court finds that as of today, two benefit of financial upgradation already stands granted to the petitioners in terms of new ACP scheme and dispute is only with regard to entitlement, if any, of the petitioner for third benefit after 14 years of service. Third benefit under new ACP scheme is sought to be denied to the petitioners on the ground that on account of enhancement of grade pay vide government order dated 1.10.2012 pay of the petitioners has been already enhanced and same in terms of order dated 26.2.2013 issued by the Government of Himachal Pradesh is to be treated as financial enhancement for the purpose of granting benefit under 8-16-24- 32 and 4-9-14 ACP scheme. Much reliance has been placed on communication dated 26.2.2013 issued by 5 Government of Himachal Pradesh, whereby it came to be clarified that grade pay granted vide order 1.10.2012 shall be treated as financial enhancement for the purpose of granting benefit under 8-16-24-32 and 4-9-14 ACP scheme. 8. …………………….. 9. Now question which needs to be determined in the instant proceedings as to “whether pay revision or grant of grade pay vide order dated 1.10.2012 can be termed to be a financial upgradation so as to deny the benefit of financial upgradation under ACPS. 10. Careful perusal of communication dated 7th July 2014 whereby old ACP scheme came to be replaced by new ACPS, clearly reveals that annul increment or general pay revision shall not be considered as financial upgradation for the purpose of benefit, if any, under ACPS. If it is so, there appears to be merit in the claim of the petitioners that they are entitled to the benefit of third financial upgradation after their having completed 14 years of service. At this stage, it would be apt to take note of para-5 of the afore letter, which reads as under:- “Moreover, the overriding objective on an assured career progression scheme is to ensure at least three financial up-gradations/ enhancements/ promotions to a regular employee in his entire service career. Therefore, in partial modification of earlier orders on ACP schemes it is directed that, once an employee has already got three enhancements / financial upgradations i.e. grant of progression under the new or old ACPS or promotion or any other financial enhancement except the annual increment or the general pay revision based on the pay commission, in fourteen years or more his/her entire service., thereafter, he will not be entitled for placement in next higher grade pay in the ACPS Scheme introduced vide FD’s instructions dated 9th August 2012. However, it is clarified that after availing three enhancements / upgradation/ promotion, an employee will be eligible to take the benefit of normal promotions available in his service career.” 11. Careful perusal of aforesaid instructions clearly reveals that an employee is granted three enhancements/upgradations/promotion, he/she shall not be eligible for grant of further benefit, if any, under ACPS, but in the case at hand, petitioners after being appointed as JBT though were given two benefits of 6 financial upgradation under ACPS, first benefit was granted under old ACPS after their having completed eight years service, whereas second benefit was granted in their favour after their having completed nine years service under new ACPS and third benefit in terms of new ACPS, for which petitioners have already opted, is being denied on the ground that vide order dated 26.02.2013 grade pay of the petitioners has been enhanced w.e.f. 1.10.2012. However, as observed hereinabove, financial upgradation, if any, on account of pay revision/revision of grade pay cannot be a ground to deny benefit of financial upgradations under ACPS, which become due after completion of four, nine and fourteen years as per new ACPS. Though, it has been vehemently argued on behalf of the respondents/State that grade pay of the petitioners was enhanced, as a result of which, their pay was enhanced, but as has been taken note above, financial enhancement on account of annual increment or general pay revision, based on pay commission, is not to be considered while considering the case of an employee for grant of benefit of ACPS. Since, in the case at hand pay of the petitioners came to be enhanced on account of grant of grade pay, benefit of financial upgradation in terms of provision contained under ACPS cannot be denied.” It is not the case of the respondents that decision in Sanjay Kumar2 has been stayed by the Hon’ble Apex Court. Learned Assistant Advocate General fairly states that the respondents have taken a policy decision to implement the decision rendered in Sanjay Kumar2 subject to outcome of the SLP filed by them. That being the position, it is beyond comprehension as to why respondents have passed the impugned order, rejecting the case of the petitioner for reasons, which have already been turned 7 down in Sanjay Kumar2. It was not open for the respondents to sit over the decision in Sanjay Kumar2. 5. In view of above, the decision of the Superintendent, Directorate of Higher Education, Himachal Pradesh, rejecting petitioner’s representation for releasing the benefits under the New Assured Career Progression Scheme on completion of requisite years of service in his favour, as conveyed in office letter dated 11.02.2025 (Annexure P-6), is quashed and set aside, being non est in the eyes of law, having been taken without any authority vested in him, with costs of Rs.10,000/- to be paid to the petitioner within a period of two weeks from today. Competent authority/respondent No.2-Director of School Education, Himachal Pradesh is directed to consider the representation of the petitioner (Annexure P-5) afresh in accordance with law keeping in view the decision rendered in Sanjay Kumar2 within three weeks. The decision so arrived at shall also be communicated to the petitioner. The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any. Jyotsna Rewal Dua May 26, 2025 Judge Mukesh