Amrutappa & Ors vs Union Of India & Ors
2014 Latest Caselaw 1641 Del

*      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

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

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

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

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

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