Delhi High Court
Satpal Singh vs Union Of India And Ors. on 17 August, 2015
Author: S.Ravindra Bhat
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on : 17.08.2015
+ W.P.(C) 2148/2014
SATPAL SINGH ..... Petitioner
Through : Ms. Harvinder Oberoi and Sh.
Jaswinder Singh, Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through : Sh. Manish Mohan, CGSC with Sh.
Yudhishter Sharma, Advocate, for UOI.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%
1. The petitioner, a Head Constable (General Duty) in the Central
Industrial Security Force (CISF) is aggrieved by the inaction of the
respondents with regard to grant of the third financial up-gradation in terms
of the Modified Assured Career Progression Scheme (MACPS), made
applicable to his employer, with effect from 28.07.2009.
2. The relevant facts are that the petitioner was recruited to the CISF, in
1982. It is not in dispute that he was granted two previous
progressions/benefits akin to promotion. After being charged with
commission of misconduct on 23.09.2010, the petitioner was proceeded with
departmentally. The charges culminated with a finding of guilt; a resultant
W.P.(C) 2148/2014 Page 1
penalty order was issued on 28.05.2011 whereby a future increment was
directed to be withheld for two years without cumulative effect. This order
was unsuccessfully appealed against - the appellate authority rejected the
petitioner's plea on 23.07.2011. The petitioner contends that when his case
for consideration of the third financial up-gradation under the MACPS came
up, he was denied the benefit on 27.04.2013 on account of application of the
Director General, CISF's instruction No.E-31014/24/2011/Estt-I/229 dated
28.09.2012/01.10.2012 (hereafter referred to as "the impugned circular").
3. The relevant condition which is in the form of a disqualification,
which in the present case was applied, reads as follows:
" (ii) PUNISHMENTS
The personnel who are considered for promotion:
(a) Should not have any major punishment in last 05 years.
(b) His/her last ACR should not be Below Average or Average.
(c) Should not have two (or more) minor punishments in last 05 years.
(d) Should not have two major punishments in the last ten years.
(e) Should not have a total of five (or more) minor and major
punishments in the last 10 years.
(f) The personnel having one minor punishment (in last 05 years) would
be considered for promotion but five marks will be deducted for the
minor punishment."
4. It is submitted that given the nature of the MACP scheme, the
impugned condition is unsustainable. Ms. Harvinder Oberoi, learned counsel
relied upon the stipulations in the MACPS, highlighted, in particular,
Condition Nos. 2, 18 and 19 and submitted that unlike the (previous) ACP
Scheme, which was formulated and brought into force with effect from
09.08.1999, MACPS prescribes no eligibility condition. Ms. Oberoi argued
that the rationale for this distinction is apparent because the MACPS benefit
W.P.(C) 2148/2014 Page 2
is entirely divorced from conditions governing regular promotion. Whereas
the ACP Scheme was premised upon the employee/official fulfilling
statutory or other prescribed eligibility conditions for consideration for
regular promotion, as it resulted in conferment of the pay scale attached to
the next higher post, the MACPS benefit, on the other hand, merely assures
placement in the next higher grade pay which may not necessarily be the one
attached to the promotional post or correspond to it.
5. Learned counsel for the respondents relied upon the averments in the
counter affidavit and stated that the Petitioner suffered a penalty which was
operative for two years. Although the eligibility conditions for grant of
MACPS do not expressly require the fulfillment of eligibility conditions
spelt-out in respect of the promotional post, there in fact is no prohibition if
benchmark considerations are read into it. He highlighted Para 17 of the
MACPS benefits to say that it is necessary for an employee to have a certain
grading and in the present case, since the petitioner had incurred a penalty,
the effect of which subsisted for two years, he could not claim any
entitlement for up-gradation under the MACPS.
6. The MACPS was formulated on 19.05.2009 by an Office
Memorandum (OM) issued by the Department of Personnel and Training
(DOPT). This scheme superseded the earlier ACP Scheme which had been
in force since 09.08.1999. Para 4 of the MACPS require the constitution of a
Screening Committee for each department, which under para 6 had to meet
twice in a financial year. Para 9 of the Scheme stated as follows:
"9. Any interpretation/clarification of doubt as to the scope
and meaning of the provisions of the MACP Scheme shall be
given by the Department of Personnel and Training
(Establishment-D). The scheme would be operational w.e.f.
W.P.(C) 2148/2014 Page 3
01.09.2008. In other words, financial upgradations as per the
provisions of the earlier ACP Scheme (of August, 1999) would be
granted till 31.08.2008"
7. The actual conditions governing the MACPs scheme are spelt out in
the Annexure to the scheme. MACPS assures - by para 1, three financial up-
gradations at the end of a block of 10 years each, i.e. 10, 20 and 30 years of
service. Para 2 states that the scheme contemplates 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. This is further clarified by
stating that in certain cases, the pay scale which MACPS assures can be
different than what is "available at the time of regular promotion". Para 5
talks of earned up-gradations and promotions under the previous ACP
scheme. The material conditions, i.e. paras 17 to 19 are extracted below:
"17. The financial upgradation would be on non-functional
basis subject to fitness, in the hierarchy of grade pay within the
PB-1.Thereafter for upgradation under the MACPS the
benchmark of 'good' would be applicable till the grade 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.
18. ln the matter of disciplinary/ penalty proceedings, grant
of benefit under the MACPS shall be subject to rules governing
normal promotion. Such cases shall, therefore, be regulated
under the provisions of the CCS (CCA) Rules, 1965 and
instructions issued thereunder.
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
W.P.(C) 2148/2014 Page 4
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."
8. A joint reading of the relevant stipulations in the MACPS would lead
one to conclude that unlike ACP scheme:
(a) it does not result in the placement of the employee always in the
regular pay scale attached to the promotional post - rather the
entitlement appears to be to the higher grade pay;
(b) MACP is not dependent upon the employee possessing all the
prescribed eligibility conditions, such as experience, qualification,
relevant ACR gradings etc.
9. The reference to benchmark - in para 17 is only descriptive in the
sense that at the relevant year of consideration, the benchmark "good"
would be applicable if the higher grade pay to the MACPS benefit to be
granted is `6600 in PB-3; for financial up-gradation to the Grade Pay of
`7600 and above, the benchmark is "very good." In the present case, the
Grade Pay is `4200 - according to the respondents. The other salient feature
which is relevant for the purposes of this case is that it is only in matters of
disciplinary/penalty proceedings that the MACPS benefits would be subject
to rules governing normal promotions. Thus, for instance, an employee
facing disciplinary proceedings, would be considered and the result of such
consideration kept in a sealed cover to await the decision in that disciplinary
proceeding. Upon the culmination of the proceeding, depending on whether
W.P.(C) 2148/2014 Page 5
the penalty is inflicted or not, the sealed cover would be opened and due
effect given to the recommendations in accordance with the relevant rules.
Barring these express stipulations, this Court does not discern any condition
compelling the consideration of the employee's case based upon ACR
grading or performance in the previous years. The stated objective of the
MACPS is to assure grant of a certain measure of financial up-gradation.
Since the ACP Scheme conditions - particularly those requiring fulfillment
of prescribed eligibility conditions were consciously given up, the insistence
by the CISF in its circular/OM dated 28.09.2012/01.10.2012, is
unsustainable.
10. For the above reasons, the petition has to succeed in part. The
respondents' decision to not grant MACPS benefits to the petitioner on the
ground that penalty effect existed for five years, - on an application of para
2(g)(ii)(c) of the said circular/notification dated 28.09.2012/01.10.2012 is
unsustainable in law. The respondents are consequently directed to consider
the petitioner's case for grant of third financial up-grdation in accordance
with the MACPS. A consequential order shall be issued by the
respondent/CISF pursuant to these directions within six weeks from today.
The writ petition is allowed in the above terms.
S. RAVINDRA BHAT
(JUDGE)
DEEPA SHARMA
(JUDGE)
AUGUST 17, 2015
W.P.(C) 2148/2014 Page 6
