TaxTMI 
TaxTMI 
2020 (3) TMI 1393
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....hyay, Rekha Pandey, Arvind Kumar Sharma, 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, Bhavik....
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....s case for grant of financial upgradation on promotional hierarchy and rejected 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....
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.... ACP Scheme contemplates merely placement on personal basis in the higher pay scale/grant of financial benefits 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 department....
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....09. Under the Sixth Central Pay Commission, revised pay structure has been implemented with effect from 01.01.2006; whereas benefits of ACP Scheme have been allowed till 31.08.2008. Vide 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 Me....
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....rade pay of Rs. 6600/- in PB-3. The benchmark will be 'Very Good' for financial upgradation to the grade pay of Rs. 7600 and above. 19. The MACPS contemplates merely placement on personal basis in the immediate higher Grade pay/grant of financial 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 grou....
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.... 9300-34800 5400 17. New Scale 8000-275-13500 (Group A Entry) PB-3 15600-39100 5400 18. S-16 9000 PB-3 15600-39100 5400 19. S-17 9000-275-9550 PB-3 15600-39100 5400 20. S-18 10325-325-10975 PB-3 15600-39100 6600 21. S-19 10000-325-15200 PB-3 15600-39100 6600 22. S-20 10650-325-15850 PB-3 15600-39100 6600 23. S-21 12000-375-16500 PB-3 15600-39100 7600 24. S-22 12750-375-16500 PB-3 15600-39100 7600 25. S-23 12000-375-18000 PB-3 15600-39100 7600 26. S-24 14300-400-18300 PB-4 37400-67000 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....
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.... Scheme and MACP Scheme can be well understood by reference to the Pay Scale under the Fifth Central Pay Commission and the revised pay structure under the Sixth Central Pay Commission and the corresponding Grade Pay thereon as stated in Section-1, Part-A of the First Schedule of CCS (Revised Pay) Rules, 2008. THE FIRST SCHEDULE (SEE RULES 3 & 4) PART - A SECTION I Revised Pay Bands and Grade Pays for posts carrying present scales in Group 'A', 'B', 'C' & 'D' except posts for which different revised scales are notified separately. 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) 5. S-4 2750-70-3800-75-4400 PB-1 5200-20200 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. ....
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....en granted the beneficial pay upgradation as per the prevailing Rules of MACP Scheme on the recommendation of the Sixth Central Pay Commission. The previous ACP Scheme was withdrawn and superseded by MACP Scheme with effect from 01.09.2008 based on the recommendation of the Sixth Central Pay Commission. Under MACP Scheme, the Respondent can only claim immediate next Grade Pay and not the corresponding Grade Pay in promotional hierarchy. 18. As discussed earlier, in the ACP Scheme, there was no Grade Pay but only fixed Pay Scales and fixed increments were there. After the Sixth Central Pay Commission, various Pay Scales have been clubbed together and there is revised Pay Scale with corresponding Pay Bands and corresponding Grade Pay. As discussed earlier, the norms for grant of ACP were stringent and the government servant has to satisfy the norms for promotion. Whereas under the MACP Scheme, for financial upgradation, the rigour of screening is diluted. For upgradation under the MACP Scheme, 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 abo....
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....at the will of the employer-Government. Learned Senior Counsel further submitted that MACP scheme envisages merely placement in the immediate next higher grade pay and the word "hierarchy" cannot be dissected from the "recruitment" and "conditions of service". It was submitted that as per Rule 3(7) of Central Civil Services (Revised Pay) Rules, 2008, "revised pay structure" in relation to any post specified in column (2) of the First Schedule means the pay band and grade pay specified against that post or the pay scale specified in column (5) and (6) thereof. It was submitted that while granting financial upgradation under MACP scheme, the same has to be in the "higher grade pay in the next promotional hierarchy and not merely in the hierarchy of grade pay". 21. Mr. Jaideep Gupta, learned amicus assisted by Kunal Chatterji submitted that the object and purpose of the 1999 ACP was to mitigate hardship in case of acute stagnation either in a cadre or in an isolated post and MACP scheme of 2009 is also 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 fin....
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....o drawn our attention to the comparative chart and submitted that MACP scheme has operated to the disadvantage of the Respondents. 24. Mr. M.K. Bhardwaj, learned Counsel representing the intervenors has drawn our attention to the Record Note of the meeting of the Joint Committee on MACP scheme held under the Chairmanship of the Joint Secretary, DOP & T on 15.09.2010 and submitted that the Committee had taken note of various anomalies and also as to how the implementation of MACP has resulted as a disadvantage to the Government servants. Mr. Bhardwaj has drawn our attention to various anomalies noted by the Committee and submitted that in Raj Pal's case, the Record Note of the third meeting of MACP scheme held on 15.03.2011 was taken note by the High Court and the High Court rightly held that Raj Pal is entitled to financial upgradation in the grade pay based on the next promotional hierarchy. It was submitted that if the financial upgradation is to be granted on the basis of next grade pay, it would be greatly disadvantageous to the employees. Discussion and findings: 25. Though various contentions have been raised assailing the MACP Scheme viz. "financial upgradation ....
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....ith a view to putting an end to the problem ensuing from inter-departmental disparities. 27. The learned amicus and the learned Counsel appearing for the Respondents urged the court to adopt a "purposive interpretation" that the words "immediate next higher Grade Pay" to be interpreted as "Grade Pay of the next promotional post" in the hierarchy. MACP Scheme envisages merely placement in the immediate next higher Grade Pay. By perusal of the MACP Scheme extracted earlier, it is seen that the words used in the Scheme are "placement in the immediate next higher Grade Pay in the hierarchy of the recommended revised pay bands". The term "Grade Pay in the next promotional post" is conspicuously absent in the entire body of the MACP Scheme. The argument of the Respondents that the benefit of MACP Scheme is referable to the promotional post, is de hors the MACP Scheme and cannot be accepted. Though ACP and MACP Schemes are intended to provide relief against stagnation, both the Schemes have different features. Pay scales 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 var....
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....urt should not interfere with the recommendations of the expert body. When the government has accepted the recommendation of the Pay Commission and has also implemented those, any interference by the court would have a serious impact on the public exchequer. 30. Observing that it is the function of the Government which normally acts on the recommendations of the Pay Commission which is the proper authority to decide upon the issues, in Union of India and Anr. v. P.V. Hariharan and Anr. (1997) 3 SCC 568, it was held as under: 5. ..... It is the function of the Government which normally acts on the recommendations of a Pay Commission. Change of pay scale of a category has a cascading effect. Several other categories similarly situated, as well as those situated above and below, put forward their claims on the basis of such change. The Tribunal should realise that interfering with the prescribed pay scales is a serious matter. The Pay Commission, which goes into the problem at great depth and happens to have a full picture 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 mis....
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....he Supreme Court held as under: 10. It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter, several relevant factors, some of which have been noted by this Court in the decided case, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay......... That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the Government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a Section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case w....
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....e post of Photocopier w.e.f. 12.10.1986 in the pay scale of Rs. 3050-4590/- in the Central Administrative Tribunal, Chandigarh Bench, Chandigarh. The post of Photocopier is an isolated post. Upon introduction of the ACP Scheme in the year 1999, on completion of twelve years of regular service, Raj Pal was granted the next higher scale in the hierarchy of pay scales i.e. Rs. 3200-4590/- vide order dated 12.10.1999. At that point of time, Raj Pal claimed parity with other posts like Hindi Typist/LDC which was also in the equivalent pay scale of Rs. 3050-4590/- and had been placed in the scale of Rs. 4000-6000/- on the grant of 1st financial step up on completion of twelve years of regular service. He also claimed that on completion of twenty-four years of regular service in second financial step up, he should be placed in the scale of Rs. 5500-9000/-. In the earlier round of litigation, Raj Pal filed O.A. No. 278/CH/2004 claiming the aforesaid parity with posts like Hindi Typist/LDC and the same was allowed by Central Administrative Tribunal by its order dated 30.08.2004 whereby Raj Pal was held entitled to the benefit of higher pay scale under the ACP Scheme of 1999 as applicable fo....
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.... PB-2 in the scale of Rs. 9300-34,800/- with Grade Pay of Rs. 4,200/- to Raj Pal under the MACP from due date and fix his pay in the hierarchy of posts decided in his case earlier. The Appellants filed CWP No. 19387 of 2011 before the High Court assailing the aforesaid order. It was inter alia contended by the Appellants that the earlier ACP Scheme stood superseded by the MACP scheme and both the schemes cannot run concurrently. The said writ petition was dismissed by the High Court. 40. The above judgment of the High Court was challenged in the Supreme Court by filing SLP (C) No. ....CC 7467 of 2013. The SLP was filed on 24.12.2011; but some defects were observed by the Court Registry and returned for rectification whereafter the SLP was refiled only on 21.03.2013. The SLP was dismissed by the Hon'ble Chamber Judge vide order dated 15.04.2013 on the ground that sufficient explanation has not been given to condone the delay in refiling the SLP. 41. Insofar as Raj Pal's case is concerned, in view of the dismissal of the earlier writ petition i.e. CWP No. 7356/CAT of 2005, Principal Bench of the Tribunal issued letter dated 02.08.2007 directing all the Benches of the Tr....
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....al's case did not go into any details in respect of the overall features of the new MACP Scheme and did not consider the recommendations of the expert body which culminated in the new Scheme. The order passed in Raj Pal's case could not have been taken as a precedent in other cases. This is all the more so when SLP (C) No. ....CC 7467 of 2013 was dismissed by the Supreme Court on the ground of delay in refiling the Special Leave Petition and no decision was rendered on merits. Dismissal of case by the Supreme Court on the ground of delay in filing/non-filing, is not a binding precedent: 43. As noted above, SLP preferred by Union of India against the order dated 19.10.2011 passed by the High Court was dismissed on the ground that the delay in refiling has not been satisfactorily explained. The question which arises for consideration is when the SLP has been dismissed on the ground of delay in filing or of refiling (like in the case of Raj Pal), whether it can be taken as a binding precedent on the merits of the case as the "law declared by the Supreme Court within the meaning of Article 141 of the Constitution of India". Raj Pal's case having been dismissed on the ....
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....ial leave petition on the merits of the case have been rejected by the Supreme Court. It has been further held that the effect of a non-speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where special leave petition should be granted. In Union of India v. All India Services Pensioners' Association (1988) 2 SCC 580 this Court has given reasons for dismissing the special leave petition. When such reasons are given, the decision becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. It, therefore, follows that when no reason is given, but a special leave petition is dismissed simpliciter, it cannot be said that there has been a declaration of law by this Court Under Article 141 of the Constitution. Raj Pal's case having been dismissed on the ground that no sufficient cause was shown for the delay in refiling, Raj Pal's case ought not to have been quoted as....
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....03.2011). Pursuant to the decision of the 3rd Meeting of Joint Committee, it was decided that the official side would write to the Ministry of Railways, Defence, Urban Development, Home Affairs and the Department of Posts to forward information in respect of the specific categories of employees where the MACP was less advantageous than the erstwhile ACP Scheme. Accordingly, these Ministries/Departments were requested to send specific cases wherein, it was less advantageous for employees under MACP Scheme as compared to ACP Scheme. It is stated that no Ministry/Department other than Ministry of Urban Development had responded. (Vide Copy of Minutes dated 15.03.2011) 49. Meeting of the Joint Committee dated 27.07.2012: In the meeting of the Joint Committee held on 27.07.2012, the official side stated that it was not possible to give individual options to the employees to opt for erstwhile ACP Scheme in preference to MACP Scheme for availing the benefit of financial upgradation. 50. Letter dated 04.11.2013: Pursuant to the Joint Committee meeting held on 27.07.2012, a letter dated 04.11.2013 was sent to the staff side making it clear that the solution lies in review of cadre str....