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TMI Blog2020 (3) TMI 1393X X X X Extracts X X X X X X X X Extracts X X X X ..... has been introduced on the recommendation of the Sixth Central Pay Commission which has been accepted by the Government of India. After accepting the recommendation of the Sixth Central Pay Commission, the ACP Scheme was withdrawn and the same was superseded by the MACP Scheme with effect from 01.09.2008 - When the expert body like Pay Commission has comprehensively examined all the issues and representations and also took note of inter-departmental disparities owing to varying promotional hierarchies, the court 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. 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 - In the present batch of cases where the Respondents are claiming financial upgradation in the grade pay of promotional hierarchy, no grounds are made o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Babu, Rameshwar Prasad Goyal, C.M. Angadi, M.K. Bhardwaj, Akash Dahiya, Satish Kumar, G. Prakash, Jishnu M.L., Priyanka Prakash, Beena Prakash, M.K. Dua, Sudhir Naagar, Karamveer Singh, Sidharth Khatana, Haripriya Padmanabhan, Pooja Dhar, Shrutanjaya Bhardwaj, G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quer 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 'A, 'B', 'C and 'D' cadres which have no promotional avenues also qualify for similar benefits. The financial upgradations under the ACP Scheme is placement in the higher Pay Scale and financial benefits in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; ......... 8. The financial upgradation under the ACP Scheme shall be purely personal to the employee and shall have no relevance to his seniority position. As such, there shall be no additional financial upgradation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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. As per para No. 11 of the said memorandum dated 19.05.2009, the differences in pay scales on account of financial upgradations under the ACP Scheme and MACP Scheme would not be construed as an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 period of debarment due to the refusal. ............... 12. Clause 28 contains illustrations as to grant of financial upgradation under MACP. The illustrations in Clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. S-15 8000-275-13500 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 compo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noted above, under the Sixth Pay Commission, scales of pay of various hierarchies namely Lower Division Clerk and Upper Division Clerk are all placed in the Pay Band-I i.e. ₹ 5200-20200, of course with different Grade Pay. When the Respondents are enjoying the benefit of the Sixth Pay Commission by getting higher pay scale, they should go by the Scheme in accepting what it gives on the financial upgradation; but the Respondents are claiming the best of the benefits from both the ACP and MACP Schemes. The Respondents have already been 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bracket of erstwhile pay scale and the grade pay and the concept of grade pay is a fitment benefit applicable to different pay. Learned Senior Counsel submitted that when a person is to be given benefit, pay, allowance or upgradation of the pay has to be given and in such a case, the upgradation has to be in the next hierarchy of promotional position i.e. grade pay in the next promotional position. It was submitted that pay, allowance and financial upgradation granted to the employees are the conditions of service and the same cannot be altered 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d amicus and the other submissions, Ms. Prabha Swami, learned Counsel appearing for the Respondents in SLP(C) No. 31125 of 2016 has taken us through the facts and submitted that if the ACP had been continued after the completion of twenty-four years of service, Respondents (SLP(C) No. 31125 of 2016) would have been in the grade pay of ₹ 5400/- in Pay Band-3 whereas due to MACP, the Respondents were placed in grade pay of ₹ 4600/- in Pay Band-2 and this has caused discrimination and financial hardship to the Respondents. Learned Counsel has also 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 submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difications indicated thereon in the Report that the financial upgradation has to be in the next immediate Grade Pay. One of the reasons for the expert body recommending the MACP Scheme was that there were interdepartmental disparities where several departments had varying promotional hierarchies. As a result, the working of ACP Scheme under which an employee who stagnated for 12 years, was entitled to pay in the Pay Scale of the next promotional post, led to inter-departmental anomalies. The Pay Commission therefore, recommended MACP Scheme with 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission which has examined all the issues, various representations and disparities. Before making the recommendation for the Pay Scale/Revised Pay Scale, the Pay Commission takes into consideration the existing pay structure, the representations of the government servants and various other factors after which the recommendations are made. When the expert body like Pay Commission has comprehensively examined all the issues and representations and also took note of inter-departmental disparities owing to varying promotional hierarchies, the court 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. Chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for promotion to officers working in different department. The Supreme Court has further observed that the Tribunal cannot substitute its own views for the views of the government or direct new policy based on the views of Tribunal. 34. Observing that fixation of pay and determination of responsibilities is a complex matter which is for the executive to take a decision, the courts should approach such matters with restraint, in State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Association (2002) 6 SCC 72, the 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..... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. ......CC 7467 of 2013 was dismissed by the Supreme Court vide order dated 15.04.2013 on the ground that there was no sufficient explanation to condone the delay in refiling the Special Leave Petition which is a default in the manner in which the case was prosecuted and not a dismissal on merits. Be that as it may, since various High Courts have relied upon Raj Pal's case, it is necessary to refer to the facts, findings thereon and whether it could have been followed as precedent. 37. Raj Pal was working in the post of Photocopier w.e.f. 12.10.1986 in the pay scale of ₹ 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. ₹ 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 ₹ 3050-4590/- and had been placed in the scale of ₹ 4000-6000/- on the grant of 1st financial step up on c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale of ₹ 4000-6000/- was also kept in PB-1 with grade pay of ₹ 2400/-. The scale of ₹ 5500-9000/- was kept in PB-2-₹ 9300-34800/- with grade pay of ₹ 4200/-. In terms of MACP Scheme, by the order dated 09.08.2010, Raj Pal was granted second financial upgradation in the PB-1 of ₹ 5200-20200/- with grade pay of ₹ 2400/-. 39. Raj Pal filed OA No. 1038/CH/2010 before CAT contending that his pay has been wrongly fixed in PB-1 in the scale of ₹ 5200-20200/- with Grade Pay of ₹ 2400/-. He claimed that he was entitled to be fixed in PB-2 in the scale of ₹ 9300-34800/- with Grade Pay of ₹ 4600/-. Raj Pal relied on para (6) of the MACP Scheme as per which in case of employees granted financial upgradations under ACP Scheme till 01.01.2006, their revised pay will be fixed with reference to the pay scale granted to them under ACP. The Tribunal vide its order dated 31.05.2011 noted that it is not disputed that the post held by Raj Pal has been declared equivalent to the post of LDC/Hindi Typist etc. by the Tribunal as well as the High Court in matters of grant of ACP and these pronouncements have attained finality and also sto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 Benches may be granted 1st financial upgradation under ACP Scheme in the scale of pay of ₹ 4000-6000 and 2nd financial upgradation in the scale of ₹ 5500-9000. ........... 12. There is no dispute that the Applicant is holding the post of photocopier, which is an isolated post, having no avenues for promotion. It is also not disputed that, the post held by the Applicant had been declared equivalent to the post of LDC/Hindi Typist, etc. by the Tribunal as well as the High Court by judicial pronouncement in matters of grant of ACP, which have attained finality and stands implemented also. Accordingly, Applicant was granted 1st ACP (under the old ACP) w.e.f. 09.08.1999 in the pay scale of ₹ 4000-6000. 42. It was on the above, the Tribunal held that the post of Photocopier being an isolated post and in view of the letter dated 02.08.2007 sent by the Principal Bench and taking note of the earlier round of litigation, the Tribunal directed that Raj Pal be granted PB-2-₹ 9300-34800/- with grade pay of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 reasons were made by the Supreme Court for dismissing the SLP, 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...... . 45. Observing that when a Special Leave Petition is dismissed by a non-speaking order, by such dismissal, the Supreme Court does not lay down any law as envisaged Under Article 141 of the Constitution of India in Supreme Court Employees Welfare Association v. Union of India and Ors. (1989) 4 SCC 187, this Court held as under: 22. ....It is now a well-settled principle of law that when a special leave petition is summarily dismissed Under Article 136 of the Constitution, by such dismissal this Court does not lay down any law, as envisaged by Article 141 of the Constitution, as contended by the learned Attorney General. In Indian Oil Corporation Ltd. v. State of Bihar (1986) 4 SCC 146 it has been held by this Court that the dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 further decided that cadre structure had to be reviewed periodically to harmonise the functional needs of the organisation and career progression of employees. (Vide copy of O.M. dated 10.02.2011). 48. 3rd Meeting of the Joint Committee dated 15.03.2011: In the 3rd Meeting of the Joint Committee held on 15.03.2011, the staff side reiterated their demand that the MACP Scheme should be granted in the promotional hierarchy of posts rather than in the grade pay hierarchy. The official side had suggested that the Government was willing to consider a revision in the MACP Scheme to the effect that organisations/cadres shall have the option to choose either the ACP Scheme or the MACP Scheme. But the staff side stated that such a dispensation would not be practical and there was a need to explore other alternatives to solve the issue. Therefore, it was agreed between the staff side and the official side that there was no need to change the basic structure of MACP Scheme, but there was a n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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 that the O.M. dated 04.11.2013 was only in respect of postal employees governed under TBOP/BCR and does not relate to Central Government employees who were covered under erstwhile ACP Scheme. Therefore, this O.M. has no bearing on the issue in the said SLP pending before Hon'ble Supreme Court of India. 51. The ACP Scheme which is now superseded by MACP Scheme is a matter of government policy. Interference with the recommendations of the expert body like Pay Commission and its recommendations for the MACP, would have serious impact on the public exchequer. The recommendations of the Pay Commission for MACP Scheme has been accepted by the Government and implemented. There is nothing to show that the Scheme is arbitrary or unjust warranting interference. Without considering the advantages in the MACP Scheme, the High Courts erred in interfering with the government's policy in accepting the recommendations of the Sixth Central Pay Commission by simply placing reliance u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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