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TMI Blog2017 (12) TMI 1616X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017, DIARY NO. 13665 OF 2017, DIARY NO. 13666 OF 2017, DIARY NO. 18186 OF 2017, DIARY NO. 18048 OF 2017, DIARY NO. 18045 OF 2017, DIARY NO. 18185 OF 2017, DIARY NO. 22593 OF 2017, DIARY NO. 30116 OF 2017, DIARY NO. 23164 OF 2017, DIARY NO. 11493 OF 2017, DIARY NO. 28798 OF 2017 LOKUR, MADAN B. AND GUPTA, DEEPAK, JJ. JUDGMENT Deepak Gupta, J. 1. Applications for condonation of delay in filing and refiling the appeals are allowed. 2. This bunch of appeals is being disposed of by a common judgment since similar questions of law are involved. 3. The 6th Central Pay Commission was set up by the Government of India to make recommendations in matters relating to emoluments, allowances and conditions of service amongst other things. The Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealing with the facts of Civil Appeal Diary No. 3744 of 2016. It would be pertinent to mention that all the petitioners before the Armed Forces Tribunal ('AFT' for short) who are respondents before us are persons below officer rank. The respondents in this case retired after 01.01.2006 but prior to 31.08.2008. They claim that the benefit of the Modified Assured Career Progression ('MACP' for short) was denied to them on the ground that the MACP was made applicable only with effect from 01.09.2008. The respondents approached the AFT praying that they are entitled to the benefit of MACP w.e.f. 01.01.2006, i.e., the date from which the recommendation of the 6th CPC with regard to pay and benefits were made applicable. The stand of the Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith this Resolution there is Annexure-I. Part-A of Annexure-I deals with the pay structure, grade pay, pay bands etc., and Item 10 reads as follows :- 10 Assured Career Progression Scheme for Three ACP PBORs. upgradation after The Commission recommends that the 8, 16 and 24 years time bound promotion scheme in case of of service has been PBORs shall allow two financial approved. The upgradations on completion of 10 and 20 upgradation will years of service as at present. The take place only in financial upgradations under the scheme the hierarchy of shall allow benefit of pay fixation equal Grade Pays, which to one increment along with the higher need not grade pay. As regards the other necessarily be the suggestions relating to residency p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3 ACP at 8, 16 and 24 years of service) should be applicable w.e.f. 1 Jan 2006, and the old provns (operative w.e.f. the Vth Pay Commission) would be applicable till 31 Dec. 05. Regular service for the purpose of ACP shall commence from the date of joining of a post in direct entry grade. xx xx xx" Finally, on 30.05.2011 another letter was issued by the Ministry of Defence, relevant portion of which reads as follows:- "5. The Scheme would be operational w.e.f. 1st September 2008. In other words, financial up-gradations as per the provisions of the, earlier ACP scheme (of August 2003) would be granted till 31.08.2008." Therefore, even as per the understanding of the Army and other authorities up till the issuance of the letter dated 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been accepted with modifications and recommendations with regard to pay structure, pay scales, grade pay etc. have been made applicable from 01.01.2006. This is a decision of the Cabinet. This decision could not have been modified by issuing executive instruction. The letter dated 30.05.2011 flies in the face of the Cabinet decision reflected in the Resolution dated 30.08.2008. Thus, administrative instruction dated 30.05.2011 is totally ultra vires the Resolution of the Government. 12. Col. R. Balasubramanian, learned counsel for the UOI relied upon the following three judgments viz. P.K. Gopinathan Nair & Ors. v. Union of India and Ors. 1 , passed by the High Court of Kerala on 22.03.2017, Delhi Urban Shelter Improvement Board v. Shashi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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