9911796707
TMI Blog2020 (3) TMI 1393X X X X Extracts X X X X X X X X Extracts X X X X ..... rma, S.S. Ray, Vijay Prakash, B.V. Balram Das, Alka Agarwal, Baldev Atrey, B. Krishna Prasad, Gurmeet Singh Makker, Sahil Monga, Anil Katiyar, Priya Mishra, Arun Kumar Yadav, Surender Kumar Gupta, Mukesh Kumar Maroria, Shubham Saurav, Vimla Sinha, B.K. Prasad, Rajeev Sharma, Sahil Bhalaik, Tushar Giri, Pradeep Kumar Mittal, Shivetima D., Simanta Kumar, Saurabh Kumar, Raj Kishor Choudhary and K. Rajeev, Advs. For the Respondent : Vinay Kumar Garg, Sr. Adv., O.P. Bhadani, C.K. Sasi, Nayantara Roy, Abdulla N., Somya Gupta, P.A. Kulkarni, Punam Kumari, Yatindra Sharma, Prashant Kumar, G. Umapathy, Vaishnavi, Rakesh K. Sharma, G. Tushar Rao, Mayank Sharma, Kumar Dushyant Singh, Pavitra, D.K. Thakur, Devendra Jha, Shivaraju H.B., Ritupam Uniyal, Abhishek Kumar, Advs., for Debasis Misra, Prabha Swami, Nikhil Swami, Divya Swami, Arvind Kumar Sharma, Anil Katiyar, B. Krishna Prasad, Mukesh Kumar Maroria, Naveen R. Nath, Rahul Jain, A.N. Arora, Sumita Hazarika, Ipsita Behura, Sunil Kumar Jain, M.B. Rama Subba Raju, E.P. Gopinathan, Megha, Balaji Srinivasan, R.S. Rajiv, K. Rajeev, Mohan Kumar, Manoj V. George, Shilpa Liza George, K.M. Vignesh Ram, Bhavika, Zulfiker Ali P.S., Chava Badri Nath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted the stand of the Appellant-UOI that under MACP scheme, the employees are entitled to financial upgradation of the next grade pay only. Since the matter was considered on merits and since the issue involves impact on the public exchequer and also interest of the staff of various establishments, we requested learned Senior Counsel, Mr. Jaideep Gupta to assist the Court as amicus curiae which the learned Senior Counsel has readily consented. Mr. Kunal Chatterji, learned Counsel has agreed to assist the learned Senior Counsel-amicus. Assured Career Progression (ACP) Scheme: 6. The Government of India with a view to "deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues", introduced the Assured Career Progression (ACP) Scheme with effect from 09.08.1999 vide its Office Memorandum dated 09.08.1999. To mitigate the hardship in cases of acute stagnation in a cadre or in an isolated post, it has been decided to grant two financial upgradations under the ACP Scheme to Group 'B', 'C and 'D' employees on completion of 12 and 24 years of regular service. As per ACP Scheme, isolated post in Group ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts only and shall not amount to actual functional promotion of the employees concerned. We may usefully refer to the relevant features of the ACP Scheme as stipulated in Annexure-I to the Office Memorandum dated 09.08.1999-Conditions for Grant of Benefits under the ACP Scheme, which reads as under: Conditions for grant of benefits under the ACP Scheme: 1. The ACP Scheme envisages merely placement in the higher pay-scale/grant of financial benefits (through financial upgradation) only to the Government servant concerned on personal basis and shall, therefore, neither amount to functional/regular promotion nor would require creation of new posts for the purpose; ......... 4. The first financial upgradation under the ACP Scheme shall be allowed after 12 years of regular service and the second upgradation after 12 years of regular service from the date of the first financial upgradation subject to fulfilment of prescribed conditions. In other words, if the first upgradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc. this would have consequential effect on the second upgradation which would also get deferred accordingly; ... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Office Memorandum dated 19.05.2009, the Government of India introduced the MACP Scheme, in supersession of the ACP Scheme w.e.f. 01.09.2008. There shall be no change in distinction, classification or higher status on grant of financial upgradation under MACP as the upgradation is purely personal and merely placement in the next higher Grade Pay. Modified Assured Career Progression (MACP) Scheme: 10. Under the MACP Scheme, three financial upgradations are made available in the next grade pay to an employee who has completed 10, 20 and 30 years of regular service in the same post without getting any promotion. The benefit would be available at the next higher grade pay. Some of the salient features of the MACP Scheme are as follows: * Para No. 2 of the MACP Scheme provides that the "MACP Scheme envisages merely placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay". * As per para No. 10 of the MACP Scheme-Office Memorandum dated 19.05.2009, no stepping up of pay in the pay band or grade pay would be admissible with regard to junior getting more pay than the senior on account of pay fixation under the MACP Scheme. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nancial benefits only and shall not amount to actual functional promotion of the employees concerned. Therefore, no reservation orders/roster shall apply to the MACPS, which shall extend its benefits uniformly to all eligible SC/ST employees also. However, the Rules of reservation in promotion shall be ensured at the time of regular promotion. For this reason, it shall not be mandatory to associate members of SC/ST in the Screening Committee meant to consider cases for grant of financial upgradation under the Scheme. ............. 25. lf a regular promotion has been offered but was refused by the employee before becoming entitled to a financial upgradation, no financial upgradation shall be allowed as such an employee has not been stagnated due to lack of opportunities. If, however, financial upgradation has been allowed due to stagnation and the employees subsequently refuse the promotion, it shall not be a ground to withdraw the financial upgradation. He shall, however, not be eligible to be considered for further financial upgradation till he agrees to be considered for promotion again and the second the next financial upgradation shall also be deferred to the extent of peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 400-67000 8700 27. S-25 15100-400-18300 PB-4 37400-67000 8700 28. S-26 16400-450-20000 PB-4 37400-67000 8900 29. S-27 16400-450-20900 PB-4 37400-67000 8900 30. S-28 14300-450-22400 PB-4 37400-67000 10000 Present Scale Revised Pay Structure Sl. No. Post/ Grade Sl.No. Post/Grade Sl.No. Post/Grade 31. S-29 18400-500-22400 PB-4 37400-67000 10000 32. S-30 22400-525-24500 PB-4 37400-67000 12000 33. S-31 22400-600-26000 HAG + Scale 75500 (annual increment @ 3 %)- 80000 Nil 34. S-32 24050-650-26000 HAG + Scale 75500 (annual increment @ 3 %) - 80000 Nil 35. S-33 26000 (Fixed) Apex Scale 80000 (Fixed) Nil 36. S-34 30000 (Fixed) Cab. Sec. 90000 (Fixed) Nil Comparison of ACP and MACP Scheme: 13. For grant of financial upgradation under ACP Scheme, a Screening Committee shall be constituted for the purpose of processing the cases for grant of benefits under the ACP Scheme. In terms of Clause 6.2 of the ACP Scheme, the composition of the Screening Committee shall be the same as that of Departmental Promotion Committee (DPC) prescribed under the relevant recruitment/service Rules for regular promotion to the hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1800 6. S-5 3050-75-3950-80-4590 PB-1 5200-20200 1900 7. S-6 3200-85-4900 PB-1 5200-20200 2000 8. S-7 4000-100-6000 PB-1 5200-20200 2400 9. S-8 4500-125-7000 PB-1 5200-20200 2800 10. S-9 5000-150-8000 PB-2 9300-34800 4200 11. S-10 5500-175-9000 PB-2 9300-34800 4200 12. S-11 6500-200-6900 PB-2 9300-34800 4200 13. S-12 6500-200-10500 PB-2 9300-34800 4200 14. S-13 7450-225-11500 PB-2 9300-34800 4600 15. S-14 7500-250-12000 PB-2 9300-34800 4800 16. Upon implementation of the Sixth Central Pay Commission, the Pay Scale of 3050-75-3950-80-4590 was kept in Pay Band-1 i.e. Rs. 5200-20200 with Grade Pay of Rs. 1900/-. Likewise, the Pay Scale of 3200-85-4900 was kept in Pay Band-1 i.e. 5200-20200 with Grade Pay of Rs. 2000/-. Pay Scale of Upper Division Clerk 4000-100-6000 was also kept in the same Pay Band-1 i.e. 5200-20200 but with Grade Pay of Rs. 2400/-. Under the ACP Scheme, the Government employee who was working as Lower Division Clerk in the Pay Scale of 3050-75-3950-80-4590, on completion of 12 years of service, would be entitled to the financial upgradation in the next promotional hierarchy i.e. in the cadre of UDC i.e. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the benchmark of "Good" would be applicable till the Grade Pay of Rs. 6600/- in Pay Band-3. The benchmark will be "Very Good" for financial upgradation to the Grade Pay of Rs. 7600/- and above. Contentions: 19. Ms. Madhvi Divan, learned ASG appearing on behalf of Union of India has taken us through the salient features of both ACP and MACP schemes and submitted that ACP and MACP schemes shall be subject to the conditions mentioned thereon. Learned ASG has submitted that Sixth Central Pay Commission took the view that ACP led to disparities within the employees in different organisations/departments and recommended adoption of the modified scheme which was accepted by the Government and Sixth Central Pay Commission and MACP scheme are being implemented. It was submitted that under the ACP scheme, the employee is entitled to financial upgradations (two times - on completion of 12 and 24 years of regular service) as per promotional hierarchy. Whereas under the MACP scheme, the financial upgradations (three times - on completion of 10, 20 and 30 years of regular service) are fixed on the basis of immediate next grade pay and therefore, ACP and MACP schemes are significantly differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so for the same purpose and grant of financial upgradation under MACP scheme is only continuation of the existing scheme with certain modifications. Learned amicus further submitted financial upgradation which is granted under the ACP and MACP both involve fixation/refixation of pay and allowance which become the basis of the fixation of pay and allowances for the rest of the career of the employee concerned and such financial upgradation is not merely a special allowance which can be granted or taken back at the will of the employer. Learned amicus has submitted that MACP scheme linked to the grade pay should not be taken into consideration and MACP scheme should be interpreted to mean that financial upgradation has to be granted to the grade pay of the next promotional post and not to the next grade pay in the Schedule I to the CCS (Revision of Pay) Rules. Learned amicus urged the Court to adopt a purposive interpretation of the MACP scheme to grant financial upgradation in the next promotional hierarchy as in the erstwhile ACP scheme. It was contended that if financial upgradation is granted in the hierarchy of grade pay then MACP scheme would lead to a discriminatory treatment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be greatly disadvantageous to the employees. Discussion and findings: 25. Though various contentions have been raised assailing the MACP Scheme viz. "financial upgradation in the next Grade Pay" and "no stepping up of pay on the ground that junior getting more pay", be it noted that the clauses of the MACP Scheme including the Clause providing the financial upgradation in the next Grade Pay have not been challenged by the Respondents. In the impugned judgments, the Tribunals/High Courts have only relied upon Raj Pal's case and not gone into the MACP Scheme vis-à-vis erstwhile ACP Scheme and also not considered the merits of the contention of the Respondents. We have therefore, considered the MACP Scheme vis-à-vis erstwhile ACP Scheme in the light of the contentions raised by the Respondent. 26. As pointed out earlier, both ACP and MACP Schemes are in the nature of incentive schemes devised with the object of ensuring that the employees who are unable to avail of adequate promotional opportunities, get some relief from stagnation in the form of financial benefits. Under the MACP Scheme, financial upgradations are granted at three regular intervals on completion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les under the Sixth Pay Commission and the MACP Scheme are stated to be more beneficial since it extends to the employees with time intervals with higher pay bands and various facilities which were not available under the ACP Scheme including the three financial upgradations in shorter time span. In any event, MACP Scheme has not been challenged by the Respondents. As rightly contended by the learned ASG, the Respondents cannot be permitted to cherry-pick beneficial features from the erstwhile ACP Scheme and also take advantage of the beneficial features in the MACP Scheme. 28. The object behind the MACP Scheme is to provide relief against the stagnation. If the arguments of the Respondents are to be accepted, they would be entitled to be paid in accordance with the grade pay offered to a promotee; but yet not assume the responsibilities of a promotee. As submitted on behalf of Union of India, if the employees are entitled to enjoy Grade Pay in the next promotional hierarchy, without the commensurate responsibilities as a matter of routine, it would have an adverse impact on the efficiency of administration. 29. The change in policy brought about by supersession of ACP Scheme wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cture before it, is the proper authority to decide upon this issue. Very often, the doctrine of "equal pay for equal work" is also being misunderstood and misapplied, freely revising and enhancing the pay scales across the board. We hope and trust that the Tribunals will exercise due restraint in the matter. Unless a clear case of hostile discrimination is made out, there would be no justification for interfering with the fixation of pay scales. We have come across orders passed by Single Members and that too quite often Administrative Members, allowing such claims. These orders have a serious impact on the public exchequer too. It would be in the fitness of things if all matters relating to pay scales, i.e., matters asking for a higher pay scale or an enhanced pay scale, as the case may be, on one or the other ground, are heard by a Bench comprising at least one Judicial Member. .... 31. Observing that the decision of expert bodies like the Pay Commission is not ordinarily subject to judicial review, in State of U.P. and Ors. v. U.P. Sales Tax Officers Grade II Association (2003) 6 SCC 250, the Supreme Court held as under: 11. There can be no denial of the legal position that d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the court holds the order passed by the Government to be unsustainable then ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the Government to implement the same...... 35. The prescription of Pay Scales and incentives are matters where decision is taken by the Government based upon the recommendation of the expert bodies like Pay Commission and several relevant factors including financial implication and court cannot substitute its views. As held in Haryana Civil Secretariat Personal Staff Association (2002) 6 SCC 72, the court should approach such matters with restraint and interfere only when the court is satisfied that the decision of the Government is arbitrary. Even in a case where the court takes the view that order/Scheme passed by the Government is not an equitable one, ordinarily only a direction could be given to the State Government or the authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .08.2004 whereby Raj Pal was held entitled to the benefit of higher pay scale under the ACP Scheme of 1999 as applicable for the similar posts i.e. Hindi Typist/LDC. The order dated 30.08.2004 was challenged by Union of India before the High Court in CWP No. 7356/CAT of 2005 and the same was dismissed vide order dated 23.05.2007. 38. For proper appreciation of Raj Pal's case, we may refer to the relevant scales of pay with revised Pay Bands, which are as under: Present Scale Revised Pay Structure Sl. No. Post/ Grade Present Scale Name of Pay Band/Scale Corresponding Pay Bands/Scales Corresponding Grade Pay (1) (2) (3) (4) (5) (6) 6. S-5 3050-75-3950-80-4590 PB-1 5200-20200 1900 7. S-6 3200-85-4900 PB-1 5200-20200 2000 8. S-7 4000-100-6000 PB-1 5200-20200 2400 9. S-8 4500-125-7000 PB-1 5200-20200 2800 10. S-9 5000-150-8000 PB-2 9300-34800 4200 11. S-10 5500-175-9000 PB-2 9300-34800 4200 Upon implementation of the Sixth Central Pay Commission, the scale of Rs. 3050-4590/- was kept in PB-1-Rs. 5200-20200/- with grade pay of Rs. 1900/-. The scale of Rs. 4000-6000/- was also kept in PB-1 with grade pay of Rs. 2400/-. The scale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal that the Photocopiers working in the respective Benches may be granted 1st financial upgradation under ACP Scheme in the scale of pay of Rs. 4000-6000/- and 2nd financial upgradation in the scale of Rs. 5500-9000/-. In Raj Pal's case, taking note of the earlier round of litigation i.e. O.A. No. 278/CH/2004 and CWP No. 7356/CAT of 2005 and the letter sent by the Principal Bench of the Tribunal dated 02.08.2007 in its order dated 31.05.2011 in O.A. No. 1038/CH/2010, the Tribunal held that Raj Pal having been placed under ACP scheme - second financial upgradation in the scale of Rs. 5500-9000/- is entitled to PB-2 (Rs. 9300-34800/- with grade pay of Rs. 4200/-). The relevant findings of the Tribunal in O.A. No. 1038/CH/2010 read as under: 4. The Respondents took the matter to Punjab and Haryana High Court by way of filing a CWP No. 7356 CAT of 2005. The CWP was dismissed vide order dated 23.05.2007, holding the Applicant entitled to the benefit of ACP at par with the LDC/Hindi Typist, etc. It was thereafter that the Principal Bench of the Tribunal issued letter dated 02.08.2007, directing all the Benches of the Tribunal that the Photocopiers working in respective Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cause was shown for the delay in refiling, in our considered view, Raj Pal's case ought not to have been quoted as a precedent of this Court by the High Courts. 44. Article 141 of the Constitution of India provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India, i.e. the pronouncement of the law on the point shall operate as a binding precedent on all courts within India. Law declared by the Supreme Court has to be essentially understood as a principle laid down by the court and it is this principle which has the effect of a precedent. A principle as understood from the word itself is a proposition which can only be delivered after examination of the matter on merits. It can never be in a summary manner, much less be rendered in a decision delivered on technical grounds, without entering into the merits at all. A decision, unaccompanied by reasons can never be said to be a law declared by the Supreme Court though it will bind the parties inter-se in drawing the curtain on the litigation. In Union of India v. All India Service Pensioners' Association and Anr. (1988) 2 SCC 580, the Supreme Court held that "when reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts. 46. The learned Counsel for the intervenors has referred to the record note of the meetings of the Joint Committee of MACP held under the chairmanship of JS (Establishment), DoP & T on 15.09.2010 and other dates and drawn our attention to various items viz. Item No. 1-Provide for Grade Pay of the Next Promotional Post under MACP; Item No. 3-Option for Earlier ACP Scheme; Item No. 8-Anomaly on Introduction of MACP Scheme; and Item No. 29 - Modification in MACP Scheme. In response to the above submission, Union of India has filed additional written submission referring to the decision in various meetings of the Joint Committee on MACP held on various dates. 47. 2nd Meeting of the Joint Committee dated 15.09.2010: In the 2nd Meeting of the Joint Committee held on 15.09.2010, it was decided that organisations/cadres would be given the option to choose either the ACP Scheme or the MACP Scheme. It was also decided that individual options would not be permitted. Since the ACP and MACP Scheme were fallback options for stagnating employees, it was therefore decided that process of completing cadre restructuring in a time bound manner would solve the problem of stagnation. It was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigate the problem of stagnation as the benefit of Modified Assurance Career Progression Scheme have been granted as a fallback option in the event of promotions not taking place in time. With regard to letter dated 04.11.2013 which relates only to Postal Department, it is clarified that in the Department of Posts, the erstwhile ACP Scheme was not operational for postal employees. These employees were covered under Time Bound One Promotion (TBOP)/Biennial Cadre Review (BCR) Schemes. The MACP Scheme for Central Government employees is a continuation of ACP Scheme. Insofar as Department of Posts is concerned, it was decided by the Department of Posts to adopt MACP Scheme in respect of postal employees also w.e.f. 01.09.2008. Accordingly, O.M. No. 4-7/(MACPS)/2009-PCC dated 18.09.2009 was issued by Department of Posts to clarify that TBOP/BCR Schemes stand discontinued w.e.f. 01.09.2008 consequent upon introduction of MACPS to postal employees w.e.f. 01.09.2008. The O.M. dated 1-20/2008-PCC dated 04.11.2013 was issued to regulate the fixation of pay in respect of postal employees during the period 01.01.2006 to 31.08.2008 i.e. before the switch over to MACPS took place. It is stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
