HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR SWP No. 731/2003 Pronounced on: 16.05.2025 K.B. Pillai SM/PA BSF and others …. Petitioner/Appellant(s) Through:- Mr. Z. A. Qureshi, Sr. Advocate with Ms. Monisa Manzoor, Advocate. V/s Union of India and others …..Respondent(s) Through:- Ms. Masooda Jan, CGSC CORAM: HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE JUDGMENT 01. The present petition is preferred by the petitioners under Article 226 of the Constitution of India, seeking the following reliefs: “(a) Certiorari: Quashing the order impugned dated 24th October, 2002. (b) Mandamus: Commanding the respondents to accord the second financial up-gradation, so extended to the petitioners in pursuance of the order dated 4th June, 2002, from the date of the impugned order and accordingly all the arrears be paid to the petitioners.” 02. Petitioners are aggrieved by the order dated 24.10.2002 (Annexure E) issued by respondent No. 2, which unjustly withheld the benefits of the Assured Career Progression Scheme that were granted to them in terms of order dated 04.06.2002, without providing any reason. Petitioners further seek the implementation of the second financial up-gradation, as extended to them in accordance with order dated 04.06.2002, from the date of the impugned order with all the corresponding arrears. 03. Petitioner Nos. 3 to 10 were incorporated vide order dated 09.07.2004. Precisely stated facts of the case are that the petitioners are SWP No. 731/2003 currently working with respondent No. 2 as Subedar Major (P.A.). Petitioner No. 1 joined his service as Sub-Inspector (Steno) on 1st April 1974, whereas petitioner No. 2 joined his service as Sub-Inspector (Steno) on 13th November, 1972. They received their first promotion to the rank of Subedar (Steno) on 24th September 1993. The years of their joining the Border Security Force and their promotion indicate that they received their first promotion nearly after 19 and 21 years of service, respectively. 04. The petitioners contend that, given their years of service in the BSF, they have only received one promotion. Petitioner No. 1 has served the BSF for over 29 years, and petitioner No. 2 has served for nearly 31 years and petitioners are also similarly placed. It is further stated that such stagnation was also experienced by other employees working in Central Government Departments, including Border Security Force due to which the employees have filed representations and even writ petitions regarding the same. 05. It is further contended that in response to the same, the Central Government formulated a scheme known as the "Assured Career Progression Scheme for Central Government Civilian Employees," which was approved by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), Government of India. The scheme clearly stated that it was designed to address genuine stagnation and hardship faced by employees due to insufficient promotional opportunities. 06. This scheme was introduced following the recommendations of the 5th Central Pay Commission and it applied to all Ministries and SWP No. 731/2003 Departments of the Central Government. The benefits of the scheme were to be accorded to the stagnated employees, provided they meet the criteria outlined in the scheme dated 9th August, 1999. In pursuance of the scheme, the Directorate General of Border Security Force (Personnel Directorate) issued an order dated 9th May, 2000. This order was circulated to all its Headquarters and Battalions, providing clarification and providing the scales to be applied under the scheme for the Civilian Ministerial cadre, including Combatized Ministerial employees. 07. It is further submitted that after the implementation of the Assured Career Progression Scheme, various Ministries and Departments sought clarifications on certain issues related to its implementation. Doubts were raised, and the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) addressed these concerns through communication dated 20.02.2000. 08. To implement the scheme, respondent No. 2, office of the Directorate General, Border Security Force (Staff Section), constituted a Departmental Screening Committee. This committee reviewed the cases of Subedar Major (PAs) and Subedar (Stenos) and identified 14 individuals as eligible for the 2nd financial up-gradation under the Assured Career Progression Scheme. These individuals were granted the scale of ₹8,000-275-13,500 vide Order No. No. F-6001/1/36/02-Staff/BSF/5051-75, dated 04.06.2002, with petitioner No. 1 listed at Sr. No. 8 and petitioner No. 2 listed at Sr. No. 5. However, vide order dated 24.10.2002, these benefits were withheld without explaining any reason for the same, therefore, aggrieved of the said SWP No. 731/2003 order, the petitioners have filed the instant writ petition for seeking quashing of order dated 24.10.2002. 09. The respondents, in their counter affidavit, have submitted that the Border Security Force Combatised Stenographers Cadre, to which the petitioners belong, consists of the following posts:- (i) Sub-Inspector (Steno) - Entry Grade (ii) Inspector (Steno) - Promotional Post of SI (Steno) (iii) Subedar Major (PA) - Promotional post of Inspector (Steno) 10. These pay scale of Inspector (Steno) both pre-revised i.e., prior to 01.01.1996 and revised after the implementation of recommendation of Vth Central Pay Commission were (i) Sub-Inspector (Steno) – ₹1400-2300 (Pre-revised), ₹5000-8000 (Revised); (ii) Inspector (Steno) – ₹1640-2900 (Pre-revised), ₹5500-9000 (Revised) & (iii) Subedar (PA) Major – ₹2000- 3200 (Pre-revised), ₹6500-10500 (Revised). 11. The Government of India, Ministry of Home Affairs, vide Order No. 27012/1/97-PC Cell/PF-1 dated 10th October 1997, revised the rank structure and pay scales of non-gazetted cadres of Central Police Organizations effective from 10th October 1997. As a result of this exercise, the pay scales for the BSF combatized Stenographers cadre were adjusted as follows: Sr. No. Rank Structure Revised Pay Scale 1. Sub-Inspector (Steno) 5500-9000 2. Inspector (Steno) 6500-10500 3. Subedar (PA) / Major 6500-10500 SWP No. 731/2003 12. While the pay scale of Inspector (Steno) was upgraded to ₹6500- 10500, which was higher than that of Subedar Major (PA) in the same scale, Subedar Major (PA) was granted an additional appointment pay of ₹200 per month. Despite the common pay scale of ₹6500-10500 for both Inspector (Steno) and Subedar Major (PA), with the exception of the ₹200 per month appointment pay, the post of Subedar Major (PA) remained a promotional post from Inspector (Steno). 13. In terms of Government of India, DOPT Office Memorandum No. 35034/1/97-Estt(D) dated 9th September 1999, Assured Career Progression (ACP) Scheme was introduced for Central Government Civilian Employees. This scheme provided for two financial up-gradations during a government servant’s entire career, applicable to Group B, C, and D employees, as well as isolated posts in Group A services. The first financial up-gradation was to be allowed after 12 years of regular service, and the second financial up-gradation was to be granted after 24 years of regular service. If an employee has already received one regular promotion, he will qualify for the second financial up-gradation only after completing 24 years of regular service under the ACP Scheme. 14. It is submitted that in the ITBP and CISF, there is no post equivalent to the combatized Subedar Major (PA) and due to identical pay scales of Inspector (Steno) and Subedar Major (PA) in the BSF since 10th October 1997, the BSF sought clarification from the Ministry of Home Affairs regarding the appropriate pay scale for Stenographers for the second financial up-gradation under the ACP Scheme. SWP No. 731/2003 15. Based on the clarification issued by the Ministry of Home Affairs, addressing the points of doubt raised in a case involving the ITBP, it has been determined that the pay scale of ₹8,000-13,500, which is meant for Assistant Commandants (General Duty or Executive Staff), should be granted as the second financial up-gradation to Subedars (Steno) who were directly appointed as Sub-Inspectors (Steno) and have completed 24 years of regular service under the ACP Scheme. This clarification was communicated to the field formations by the BSF HQ through communication No. 38/1/11(35)198-V-PCC/BSF/Pt-1/7412-7712, dated 15th November 2001. 16. Accordingly, the respondents requested documents from all eligible Stenographers from the field formations and presented them to a duly constituted Departmental Screening Committee in February, 2002 and May, 2002. The Committee recommended granting the scale of ₹8,000-13,500 (designated for Assistant Commandants Group 'A' Gazetted, Executive Stream) as the second financial up-gradation under the ACP Scheme to 15 personnel, including some of the petitioners. After the Competent Authority approved the minutes of the Departmental Screening Committee, the respondents issued necessary orders for granting the second financial up- gradation in the pay scale of ₹8,000-13,500 vide orders No. F.60011/13/02/Staff/BSF/3263-66 dated 18th March, 2002 and No. F.60011/36/02-Staff/BSF/5051-75 dated 4th June, 2002 in favour of 15 Stenographers, including two petitioners in this case: SM(PA) K.B. Pillai and Subedar (Steno) K.A. Joseph. SWP No. 731/2003 17. Subsequently, the respondents reviewed the cases of an additional 14 eligible Stenographers and recommended them for the scale of ₹8,000- 13,500 by a newly constituted Departmental Screening Committee held on 14th June, 2002. The minutes of this Committee were submitted to the Ministry of Home Affairs to obtain approval from the Competent Authority. The Ministry of Home Affairs referred the minutes to the Department of Personnel and Training (DOPT) for clarification regarding the recommended pay scale of ₹8,000-13,500. The DOPT provided their clarification, which was received back from the Ministry of Home Affairs with the following clarification: “It is clear that Subedar Major (PA) (6500-10500) + Rs. 200/- is a promotional post of Subedar (Steno) (Rs. 6500-10,500) even if the two are in the same grade. If so, the case is covered by the clarification to point of doubt No. 52 of OM dated 18.07.2001, i.e., for a directly recruited SI (Steno), the second ACPs will be only in the scale of Subedar Major (PA), though with the benefit of FR 22(1)(a)(1). As such, the action of the Departmental Screening Committee in recommending the scale of Rs. 8000-13,500 as the next ACP Scale for Subedar (Steno) is not correct. Clarification in reply to point of doubt No. 18 that Special Pay in lieu of higher scale will not count as promotion for the purpose of ACP only implies that a regular holder of the post of Subedar Major (6500-10500) + Appointment Pay Rs. 200/- (assuming this pay is in lieu of a higher scale) would be entitled to the next financial up-gradation, notwithstanding the grant of Special Pay of Rs. 200/- in lieu of a higher scale. This does not imply that for Subedar (Steno), the grade of Subedar Major (6500-10500) + Rs. 200 is to be ignored.” 18. The DOPT clarified the doubts raised by the respondents vide its OM dated 18.07.2001 by stating as under: “52. Point of Doubt: Following the recommendations of the Pay Commission, feeder and promotional posts have been placed in the same scale. Consequently, the hierarchy of a post comprises Grades A, B, and C; i.e., the entry level and the first promotional grade are in the same scale. What shall be his entitlements under ACPs? Clarification: Normally, it is incorrect to have a feeder grade and a promotional grade in the same scale of pay. In such cases, the appropriate course of action is to review the cadre structure. If, as a result of restructuring, feeder and promotional SWP No. 731/2003 posts are merged to constitute one single level in the hierarchy, then the next financial up-gradation will be in the next hierarchical grade above the merged levels. If any promotions have been allowed in the past in grades that stand merged, they will have to be ignored, as already clarified in reply to point of doubt No. 1 of OM dated 10.02.2000. However, if for certain reasons, it is inescapable to retain both feeder and promotional grades as two distinct levels in the hierarchy, though in the same scale of pay, thereby making a provision for allowing promotion to a higher post in the same grade, it is inevitable that the benefit of financial up-gradation under ACPs also has to be allowed. Financial up-gradation cannot be allowed in a scale higher than the next promotional grade. However, as specified in condition No. 9 of the ACP Scheme (vide DOP & T OM dated 10.02.2000), pay in such cases shall be fixed under the provisions of FR 22(1)(a)(1), subject to a minimum benefit of Rs. 100/-.” 19. Since the respondents had already granted the scale of ₹8,000-13,500 to 15 Stenographers, including the two petitioners in this writ petition, to avoid overpayment, the implementation of these financial benefits was immediately withheld vide Signal No. R-3172 dated 24th October, 2002. Subsequently, a case was resubmitted to the Ministry of Home Affairs for further clarification regarding the grant of financial benefits under the ACP Scheme for these Stenographers. The case was referred back to the Department of Personnel and Training (DOPT) by the Ministry of Home Affairs. Based on the DOPT's remarks and clarifications, the Ministry of Home Affairs conveyed their decision in April, 2003. 20. Following a detailed examination of this clarification, Headquarters issued new instructions regarding the pay scale of Stenographers vide letter No. 38/1/11(35)/98-V.PPC/BSF/PT.1/32292-32592 dated 29th May 2003. The clarifications specify that the pay scale for Subedar Major (PA) Combatized, Group 'B', Non-Gazetted, i.e., ₹6,500-10,500 with fixation benefits under FR 22(1)(a)(1), should be granted instead of pay scale of ₹8,000-13,500 meant for Assistant Commandant (General Duty) SWP No. 731/2003 Combatized, Group 'A', Gazetted, as second financial up-gradation under the ACP Scheme for eligible Stenographers. 21. Based on these clarifications, the respondents issued instructions to field formations to submit fresh recommendations along with the necessary documents, including Confidential Records, for holding a review Departmental Screening Committee. This committee is to consider grant of second financial up-gradation under the ACP Scheme in the pay scale of ₹6,500-10,500 with fixation benefits under FR 22(1)(a)(1), replacing the previously granted scale of ₹8,000-13,500. This process is in respect of 15 Stenographers, including some of the petitioners, who had filed a writ petition in the Hon'ble High Court of Kerala at Ernakulam. 22. Regarding the case of Ex-Subedar (Steno) Thomas Varghese, the Hon'ble High Court of Kerala disposed of the writ petition with a direction to consider the petitioner’s representation in accordance with law within three months from the date of judgment. This consideration was to include Exhibit P-2 OA, which is the Ministry of Home Affairs OM dated 09.08.1999, introducing the ACP Scheme. Although there was no specific court order for granting second financial upgradation under the ACP Scheme in the scale of ₹8,000-13,500, a separate Departmental Screening Committee, constituted in February 2002 and approved by the Ministry of Home Affairs, granted him financial upgradation in the scale of ₹8,000- 13,500 via HQ DG BSF order dated 18th March, 2002. His case is now being reviewed along with other affected Stenographers for granting the SWP No. 731/2003 pay scale meant for Subedar Major (PA) with fixation benefits under FR 22(1)(a)(1). 23. Therefore, the respondents submit that they have taken appropriate action regarding the grant of financial benefits under the ACP Scheme to the petitioners, in accordance with government orders and instructions, and there is no violation of any of the rights of the petitioners. The petitioners’ claims in this writ petition have no merit and should be rejected summarily. The department is taking adequate action to review their cases for granting financial benefits under the ACP Scheme as per the latest clarifications issued by the concerned quarters in consultation with the Ministry of Home Affairs/DOPT. 24. The respondents, in their objections, have further stated that the pay scale of ₹8,000-13,500 is meant for Assistant Commandants (General Duty) Combatized, Group 'A', Gazetted in the Executive Stream whereas the pay scale of ₹6500-200-10500 plus ₹200/- as appointment pay is meant for Subedar Major (PA) which is a promotional post of Inspector (Steno) in the hierarchy. It is reiterated that the petitioners are entitled only to the pay scale meant for the next higher rank, i.e., Subedar Major (PA), as per the advice of the Department of Personnel and Training (DOPT), which is the central authority issuing policy instructions regarding financial benefits under the ACP Scheme. 25. It is further submitted that the respondents have implemented the instructions of DOPT by granting the second financial up-gradation in the scale of ₹6,500-10,500 plus ₹200/- with fixation benefits under FR SWP No. 731/2003 22(1)(a)(1), instead of ₹8,000-13,500 and if the order dated 06.06.2002 is kept in abeyance by this Court, then it may lead to overpayment, which could be difficult to recover from the petitioners later, as one of the petitioners, Shri K. A. Joseph, has already superannuated on 31.03.2004, and a few of the remaining petitioners are at the verge of superannuation, therefore, they pray that petitioners' plea be rejected for issuing a direction to the extent of recovery of any overpayment drawn by the petitioners. 26. 26. The petitioners’ contention that the scheme stands implemented and its benefits have been extended to the category of post but the second financial upgradation has been withheld even after the completion of stipulated period of 24 years without any justification. The benefits of Scheme were extended to by the Director General, BSF to the employes belonging to the cadre of service. The benefit, accorded to the rank of Subedar Major (PA) and Subedar (Steno) which is withheld, is discriminatory in nature. Withholding of benefits under Order dated 04.06.2002 which were granted after due screening but were later withheld without any reason, is unjustified in law. The employees, who are similarly placed as have been granted the pay scale of ₹8000-13500 and withholding the same for the petitioners violate their right of equality. The clarification of DOPT was to avoid anomalies but when the posts are merged in the same pay scale, the next higher grade is to be considered. Thus, denying the petitioners’ entitlement, the second financial upgradation is contrary to the very spirit of Scheme of ACP. SWP No. 731/2003 27. The Assured Career Progression Scheme for the central Government employees was brought into force to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. 28. In the case of the petitioners, the pay scale of Subedar (Steno) and Subedar Major (PA) has been merged into one scale and for SM(PA) as Special pay of ₹200/- is given as special pay cannot replace a higher scale nor can it defeat the ACP benefits and are entitled to next financial upgradation of ₹ 8000-13500 which is next level of hierarchy. By giving special pay in lieu of higher pay scale cannot fill the purpose under the concept of Assured Career Progression Scheme to financially compensated the stagnated employees. 29. In view of the aforesaid facts and circumstances, the order dated 24.10.2002 is set aside. The respondents are directed to accord the second up-gradation to the petitioners in pursuance to the order dated 04.06.2002 along with the arrears due to them. 30. Disposed of accordingly. (Sindhu Sharma) Judge Jammu: 16.05.2025 Michal Sharma/PS Whether approved for speaking : Yes/No Whether approved for reporting : Yes/No