* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1498/2014
AMRUTAPPA & ORS ..... Petitioners
Through: Mr. Amit Kumar, Advocate.
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Saqib, Advocate for the
Respondent Nos.1 to 3.
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
ORDER
% 27.03.2014 : VALMIKI J. MEHTA, J.
1. Petitioners by this writ petition seek the relief of being granted the pay scale of Assistant Grade in PB-II Rs.9300-34800/- with grade pay of Rs.4200/- from respective due dates. The basis of claim of the relief prayed is that as per the Modified Assured Career Promotion Scheme (MACP Scheme) Petitioners are entitled not only to the one step higher grade pay/pay band, but Petitioners should get the higher pay of the next promotion post. Petitioners therefore essentially seek W.P.(C) 1498/2014 Page 1 of 6 quashing of para 2 of Annexure-1 of the MACP Scheme dated 19.5.2009, and which para reads as under:
"The MACPs envisages merely placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in Section 1, Part-A of the first schedule of the CCS (Revised Pay) Rules, 2008. Thus, the grade pay at the time of financial upgradation under the MACPS can, in certain cases where regular promotion is not between two successive grades be different than what is available at the time of regular promotion. In such cases, the higher grade pay attached to the next promotion post in the hierarchy of the concerned cadre/organisation wil be given only at the time of regular promotion."
2. Prior to coming into force of the MACP Scheme in terms of the OM dated 19.5.2009, there was prevalent the Assured Career Promotion Scheme (ACP Scheme). As per the ACP Scheme, to prevent stagnation, a person was entitled after the end of 12 years and 24 years a higher pay scale, if in these periods, no promotion had been granted to a person. This ACP Scheme became the MACP Scheme whereby higher pay band/pay grade was to be granted after 10 years, 20 years and 30 years of service of an employee.
3. Since there are many Petitioners in the present case, and facts of each case are more or less identical so far as the issue involved is W.P.(C) 1498/2014 Page 2 of 6 concerned, we are referring to one order passed with respect to Petitioner No.1 whereby the representation for grant of the higher pay scale of the promotion post as claimed was rejected. This impugned order is dated 9.12.2013.
4. The facts of the case are that the Petitioner No.1 was appointed as a lower division clerk with effect from 8.4.1988. He was granted the first financial upgradation as per the ACP Scheme, as then applicable, with effect from 8.4.2000, in the pre-revised scale of pay of Rs.4000-6000/- (present grade pay Rs.2400/-). When the MACP Scheme came into existence, at the end of 20 years, in accordance with this extant scheme, a second financial upgradation with grade pay of Rs.2800/- was granted to the Petitioner No.1 with effect from October, 2010. As per the Petitioners grant of higher grade pay is not enough in as much as Petitioners should be granted pay scale of the next promotional post under the MACP Scheme and not merely a higher grade pay/pay band.
5. We have already reproduced above the relevant para 2 of Annexure-1 of MACP Scheme dated 19.5.2009 and which clearly states that the MACP Scheme envisages placement in the next higher W.P.(C) 1498/2014 Page 3 of 6 grade pay/pay band in the recommended revised pay bands/grade pay, and it is very much possible that in certain cases where regular promotion is not between two successive grades, then in certain cases, grade pay at the time of financial upgradation under the MACP Scheme can be different then what is available at the time of regular promotion. It is further clarified in this paragraph that higher grade pay attached to the next promotion post in the hierarchy of the concerned cadre/organization will be given only at the time of regular promotion. The issue before us is that can Petitioners challenge this part of the policy of Government contained in para 2 of Annexure I of the MACP Scheme.
6. It is trite that it is the employer which formulates the policy with respect to the pay and promotion of an employee. Courts do not frame policies with respect to financial package of an employee. It is the Government which knows its purse, and consequently the pay to be granted to its employees including financial upgradation or promotion, pay, etc. etc. Unless and until the policy in question is clearly malafide or arbitrary Courts do not and cannot step in, more so when there would be huge financial ramifications. The ACP Scheme W.P.(C) 1498/2014 Page 4 of 6 or the MACP Scheme, were taken out in order to grant a higher pay because actual promotion of an employee could not take place on account of lack of promotional avenues. Surely, it is within the jurisdiction of the employer to decide that on application of an ACP/MACP Scheme, what is the financial upgradation to be granted. It is possible and permissible that in certain cases the financial upgradation would be of the pay scale of the next promotion post, and it is also very much possible that the financial upgradation of the higher grade pay/pay band may not be of the next higher promotion post. This aspect is categorically clarified and so stated in para 2 of Annexure-1, and we cannot hold that there is any arbitrariness or illegality about the same. We hence do not find any reason to quash para 2 of Annexure-1 of MACP Scheme as is prayed on behalf of the Petitioners.
7. In our opinion, there is another reason why Petitioners cannot challenge the MACP Scheme. This is because the Petitioners have taken benefit of the MACP Scheme. Petitioner No.1 was in terms of the MACP Scheme granted a financial upgradation with effect from October 2010. It is not as if that the Petitioner No.1 refused to take W.P.(C) 1498/2014 Page 5 of 6 the financial upgradation and at that stage challenged the MACP Scheme including para 2 of its Annexure-1. Thus, Petitioner is estopped from challenging the scheme after taking the benefits of the same. In any case, even if challenge was laid at that stage, we have already given reasons above, that such a challenge would not be successful because we do not find any illegality or arbitrariness in the MACP Scheme.
8. In view of the above, there is no merit in the petition, and the same is, therefore, dismissed, leaving the parties to bear their own costs.
VALMIKI J. MEHTA JUDGE REVA KHETRAPAL JUDGE March 27, 2014 km W.P.(C) 1498/2014 Page 6 of 6