Delhi High Court
Swaran Pal Singh & Ors. vs Uoi & Ors. on 17 March, 2015
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On : February 10, 2015
Judgment Delivered On :March 17, 2015
+ W.P.(C) 5082/2013
SWARAN PAL SINGH & ORS. .....Petitioners
Represented by: Ms.Jyoti Singh, Sr.Advocate
instructed by Ms.Tinu Bajwa and
Mr.Sameer Sharma Advocates
versus
UOI & ORS. .....Respondents
Represented by: Mr.Joydeep Mazumdar, Advocate
with Mr.Rohit Dutta, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
1. Directly recruited in the grade of Sub-Inspector in the Railway
Protection Force ('RPF' for short) the petitioners have challenged the
letter dated January 22, 2010 issued by the Railway Board, in which letter
parameters for grant of financial upgradation to the employee of RPF
under the Modified Assured Career Progression Scheme (MACPS) are
prescribed. Petitioners have also prayed for a direction that the
respondents should grant second financial upgradation under MACPS in
the next Pay Band applicable to the post of Assistant Security
Commissioner i.e. Pay Band-3 with Grade Pay of `5400/- and next, viz.
3rd financial upgradation with Grade Pay of `6600/-.
2. Prior to the implementation of the recommendations of the 6th
Central Pay Commission, Sub-Inspectors in RPF were directly recruited
in the then pay scale of `4500-7000. The 5th Central Pay Commission
introduced the Assured Career Progression Scheme (ACP), which
envisaged two financial upgradations as per DOP&T O.M. dated August
09, 1999 : (i) after completion of 12 years of service; and (ii) after
completion of 24 years service, by way of fixation of the pay prescribed
for the promotional post in the hierarchy. Petitioners plead that as per the
ACP Scheme, Sub-Inspectors in RPF were placed in the next higher pay
scale of `6500-10500 on completion of 12 years service and then in the
scale of `8000-13500 on the completion of 24 years service.
3. The 6th Central Pay Commission replaced the ACP Scheme by the
MACPS. The ACP Scheme thus remained in force till August 31, 2008
and as per DOP&T O.M. dated May 19, 2009, MACPS was introduced
with effect from September 01, 2008, which envisages three financial
upgradations after 10, 20 and 30 years of service. MACPS was made
applicable to the employees of the Railways including RPF with effect
from September 01, 2008 as per Railway Board's order dated June 10,
2009.
4. The Railway Board vide its order dated January 22, 2010 has
prescribed the financial upgradations admissible for RPF/RPSF Personnel
under MACPS in the following terms:
"Post Inspector Sub-Inspector Constable
(Prosecution) (Executive/
Prosecution)
Recruitment 9300-34,800-GP- 9300-34,800-GP- 5200-20,200-
Grade 4600/PB-2 4200/PB-2 GP-2000/PB-
1st MACP 9300-34,800-GP- 9300-34,800-GP- 5200-20,200-
4800/PB-2 4600/PB-2 GP-2400/PB-
2nd MACP 9300-34,800-GP- 9300-34,800-GP- 5200-20,200-
5400/PB-2 4800/PB-2 GP-2800/PB-
3rd MACP 15,600-39,100- 9300-34,800-GP- 9300-34,800-
GP-5400/PB-3 5400/PB-2 GP-4600/PB-
2"
5. It is this order of the Railway Board which has been challenged by
the petitioners on the ground that second financial upgradation by giving
the grade pay `4800/- granted to directly recruited of Sub-Inspector on
completion of 20 years of service is fallacious and instead second
financial upgradation should have been granted in the next higher Pay
Band of Assistant Security Commissioner i.e. `15600-37100/- with Grade
Pay of `5400/-. Petitioners have accordingly claimed that the next
financial upgradation should be in the said Pay Bank with Grade Pay of
`6600/-.
6. It is the case of the petitioners that by the application of the
MACPS in the manner as above, directly recruited Sub-Inspectors have
been discriminated vis-à-vis their counterparts who have got benefit
under the ACP Scheme as also those direct recruits who have received
two financial upgradations under ACP Scheme and the 3 rd under the
MACPS.
7. Petitioners also submit that the Railway Services (Revised Pay)
Rules, 2008 issued vide notification dated September 04, 2009 for
implementation of the recommendations of the 6th Central Pay
Commission, under the Ist Schedule, Part-A, Section-II has specified the
entry pay, which is the minimum pay corresponding to each grade pay
prescribed by the 6th Central Pay Commission and further that for any
post, pay cannot be less than the minimum pay prescribed under Section-
II. It is pleaded that for Pay Band-1 (`5200-20200) and Pay Band-2
(`9300-34300) the following are recommended as the applicable pay
scales:
"Pay Band 1 (`5,200-20,200)
Post Grade Pay Recommended Pay in pay Total
pay scale as per band (Pay in
to 6th Pay pay
Commission band +
Grade
Pay)
Constable 2,000 3,200-4,900 6,460 8,460
Head 2,400 4,000-6,000 7,510 9,910
Constable
Assistant 2,800 4,500-7,000 8,560 11,360
Sub-Inspector
Sub-Inspector 4,200 6,500-10,500 9,300 13,500
Inspector 4,600 7,450-11,500 12,540 17,140"
8. Petitioners have also relied upon Rule 7 of the Railway Rules,
2008 to plead that it prescribes a procedure for fixation of Pay Scales/Pay
Band of the employees of RPF and under this Rule the salary of an
employee has to be determined by multiplying the existing pay as on
January 01, 2006 by a factor of 1.86 and rounding of the resultant to the
next multiple of 10. It is the further case of the petitioners that if the
minimum of the revised Pay Band/Pay Scales is more than the amount so
arrived, the pay shall be fixed at a minimum of revised Pay Band/Pay
Scale and thereafter the facility of bunching would be applicable as per
the proviso to the said Rule. According to the petitioners if in case the
pay so determined under Rule 7 of the Railway Rules, 2008 is less than
the minimum of the revised Pay Band/Pay Scales fixed as on January 01,
2006, it shall result in an anomaly because seniors would be getting lesser
pay than the juniors after their pay is fixed at the minimum in terms of
Section (2) of the revised Railway Rules, 2008.
9. Per contra, it is pleaded by the respondents that the Railway
Services (Revised Pay) Rules, 2008 were supplemented by the Schedules
issued vide letter September 11, 2008. The 'existing scales of pay'
prescribed for the members of RPF/RPSF prior to the implementation of
the recommendations of the 6th Central Pay Commission, and the
corresponding revised pay structures as implemented by the Railway, is
as follows:
Post Present Scale Revised Pay Band and
(Pre-revised/ Grade Pay
existing scale in
which pay was Pay in pay band Grade
being drawn Pay
Inspector 6500-10500 PB-2 (9300-34800) 4600
Sub-Inspector 5500-9000 PB-2 (9300-34800) 4200
Assistant 4000-6000 PB-1 (5200-20200) 2800
Sub-Inspector
Head 3200-4900 PB-1 (5200-20200) 2400
Constable
Constable 3050-4590 PB-1 (5200-20200) 2000
10. It is submitted by the respondents that as per Rule 7 of the Railway
Services (Revised Pay) Rules, 2008 read with the definition clause under
Rule 3 thereof, only the pay drawn in the 'prescribed existing scale of
pay' would form the basis for fixation of pay in the revised pay structure.
Accordingly, for the post of Inspector in RPF, for the pre-revised scale of
`6500-10500/- revised pay structure in PB-2 (`9300-34800/-) with grade
pay of `4600/- will be applicable. Neither the Rules of 2008 nor the
Schedule circulated vide letter dated September 11, 2008 stipulate the pay
scale of `7450-11500/- for the purpose of pay fixation for the post of
Inspector in RPF. The financial upgradation under the ACP Scheme was
in the cadre hierarchy whereas under MACPS the financial upgradation is
in the hierarchy of Grade Pay and Pay Band of the pay structure
introduced in implementation of the recommendations of the 6 th Central
Pay Commission. Since the case of the petitioners fall exclusively in the
period covered by MACPS therefore, no parallel can be drawn with their
seniors either those who have got benefit under the ACP Scheme or those
who have received second upgradation under the ACP Scheme and the
third upgradation under MACPS.
11. Questions that would essentially arise for determination in this case
are whether the benefit under MACPS can be claimed to the pay band
applicable to the next promotional post in the hierarchy on the ground of
seniors getting lesser pay than their juniors who have availed such scale
of the promotional post under the ACP Scheme; whether Section-II Part-
A of the 1st Schedule to the Railway Services (Revised Pay) Rules, 2008
prescribe minimum pay and the petitioners by application thereof become
entitled to stepping up of their pay in case their pay scales/Pay Band fixed
in terms of Rule 7 is less than the minimum pay so prescribed.
12. Prior to the implementation of the Pay-Bands recommended by the
6th Central Pay Commission, the Sub-Inspectors in RPF were placed in
the Pay-Scale `5,500-9,000/- and Inspectors were placed in the pay scale
`6,500-10,500/-. Pursuant to the recommendations of the 6th Central Pay
Commission, with effect from January 01, 2006, the Sub-Inspectors were
placed in PB-2 (`9300-34800/-) with Grade pay of `4200/- whereas
Inspectors were placed in PB-2 with Grade Pay of `4600/-. It is apparent
that the erstwhile concept of pay scale stands replaced by the concept of a
Pay Band.
13. The earlier Assured Career Progression Scheme, which was in
force till August 31, 2008 envisaged two financial upgradations as per
DOPT OM dated August 09, 1999; the first up-gradation after completing
12 years' service and the second after completing 24 years' service.
14. Relevant would it be to note that under the Assured Career
Progression Scheme the financial upgradation was by way of fixation of
the pay prescribed for the promotional post in the hierarchy.
15. With the implementation of the Pay Bands after the 6 th Central Pay
Commission made recommendations, various erstwhile pay scales were
merged in a common Pay Band and a higher grade pay was given to the
posts with onerous and higher responsibilities. The Assured Career
Progression Scheme was replaced by the Modified Assured Career
Progression Scheme (MACPS) as per DOPT OM dated May 19, 2009
which envisaged 3 financial upgradations; the first after 10 years service,
the second after 20 years service, and the third after 30 years service.
16. Para 2, 4 and 6 of the Modified Assured Career Progression
Scheme (MACPS) are relevant. They read as under:-
"2. 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 I, Part-A
of the first schedule of the CCS (Revised Pay) Rules, 2008.
Thus, the grade pay at the time of financial up-gradation 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/organization will be given
only at the time of regular promotion.
x x x
4. Benefit of pay fixation available at the time of regular
promotion shall also be allowed at the time of financial up-
gradation under the Scheme. Therefore, the pay shall be raised
by 3% of the total pay in the pay band and the grade pay drawn
before such upgradation. There shall, however, be no further
fixation of pay at the time of regular promotion if it is in the
same grade pay as granted under MACPS. However, at the
time of actual promotion if it happens to be in a post carrying
higher grade pay than what is available under MACPS, no pay
fixation would be available and only difference of grade pay
would be made available. To illustrate, in case a Government
Servant joins as a direct recruit in the grade pay of `1900 in
PB-l and he gets no promotion till completion of 10 years of
service, he will be granted financial upgradation under MACPS
in the next higher grade pay of `2000 and his pay will be fixed
by granting him one increment plus the difference of grade pay
(i.e. `100). After availing financial upgradation under MACPS,
if the Government servant gets his regular promotion in the
hierarchy of his cadre, which is to the grade of `2400, on
regular promotion, he will only be granted the difference of
grade pay between `2000 and `2400. No additional increment
win be granted at this stage.
x x x
6. In the case of all the employees granted financial
upgradations under ACPS till 01.01.2006, their revised pay will
be fixed with reference to the pay scale granted to them under
the ACPS."
17. As noted above the petitioners have pleaded that they have been
discriminated vis-à-vis the other Sub-Inspectors in RPF who have got the
benefit under the erstwhile ACP Scheme as also those who have received
two financial upgradations under the ACP Scheme and the third under the
MACPS.
18. The grievance of the petitioners rests on the premise that their
counterparts who have got the benefit under the ACP Scheme have been
placed in the pay scales of the next higher posts on completion of 12 and
24 years service. Whereas the petitioners by implementation of MACPS,
have been granted second financial upgradation confined only to Grade
Pay. Resultantly, the petitioners would be getting lesser pay than those
whose pay is fixed with reference to the pay scales granted to them under
the ACP Scheme.
19. The grievance of the petitioners as made, is however, contrary to
the fundamental concept on which MACPS introduced through the 6 th
Central Pay Commission operates. A bare reading of paragraph 2 of the
MACPS would make it clear that it is the next higher Grade Pay which
has to be given and not the Grade Pay in the next hierarchical post, as was
available under the ACP Scheme with reference to the pay scale of the
next above hierarchical post. It is not in dispute that MACPS supersedes
ACP Scheme which was in force till August 31, 2008. Therefore, after
August 31, 2008 any financial upgradation would be confined to
placement in the immediate next higher grade pay in the hierarchy of the
recommended revised Pay Band. The use of word 'merely' in para 2 of
the Scheme supports this interpretation. Paragraph 2 further clarifies that
the higher Grade Pay attached to the next promotional post in the
hierarchy of the concerned cadre/organization will be given only at the
time of regular promotion. Therefore, the claim that the petitioners should
also be placed in the replacement Pay Band applicable to the next
promotional post in the hierarchy as was available under the ACP
Scheme is misplaced.
20. This very issue had come up for consideration before this Court in
W.P. (C) No.3420/2010 R.S.Sengor & Ors. Vs. Union of India & Ors.
decided on April 04, 2011. In said case the petitioners were in Pay Band-
1 and had a corresponding grade pay of `1900/-. The next hierarchical
post was also in Pay Band-1 but had a grade pay of `2400/-. The
petitioners therein claimed that since the next hierarchical post had a pay
band of `2400/-, they should, on financial upgradation, under the
MACPS, be granted the grade pay of `2400/-. However, what the
respondents in that case had done was to grant the petitioner therein the
grade pay of `2000/- which was the next higher grade pay though, not the
grade pay corresponding to the next hierarchical post. Dismissing the writ
petition the Division Bench held as under:-
"10. The question would be whether the hierarchy
contemplated by the MACPS is in the immediately next higher
Grade Pay or is it the Grade Pay of the next above Pay Band.
11. Whatever may be the dispute which may be raised with
reference to the language of paragraph 2 of the MACPS the
illustration as per para 4 of Annexure I to the OM, contents
whereof have been extracted hereinabove, make it clear that it
is the next higher Grade Pay which has to be given and not the
Grade Pay in the next hierarchical post and thus we agree with
the Respondents that Inspectors have to be given the Grade Pay
after 10 years in sum of `4800/- and not `5400/- which is the
Grade Pay of the next Pay Band and relatable to the next
hierarchical post. To put it pithily, the MACPS Scheme requires
the hierarchy of the Grade Pays to be adhered to and not the
Grade Pay in the hierarchy of posts."
21. This view has since been followed by another Division Bench of
this Court in the decision reported as 193 (2012) DLT 577 Union of India
Vs. Delhi Nurses Union (Regd.) & Anr.
22. Therefore, merely because others who have been granted financial
upgradation in the pay scale of the promotional post in the hierarchy
under the ACP Scheme and by operation of para 6 of MACPS, their pay
is fixed with reference to the pay scale granted to them under the ACP
Scheme, the petitioners would not get any right to be placed in such
scales, since the language of the scheme makes it clear that the financial
upgradation under ACP/MACPS are different than regular promotions in
the grade.
23. Even otherwise, as held in R.S.Sengor's case (supra) the MACPS
requires the hierarchy of grade pay to be adhered to and not the grade pay
in the hierarchy of posts. Both the schemes conferred benefit of financial
upgradation to tide over the problems of stagnation and operate in their
respective fields. Though, there is no challenge to the MACPS or any part
thereof, yet it is beyond any cavil that the Courts by judicial review
cannot interfere with a policy decision of a State unless it is shown to be
patently arbitrary, discriminatory or mala-fide. In this case, there is no
such claim made by the petitioners.
24. In the decision reported as 1998 (2) SCC 198 Govt. of Tamil Nadu
Vs. S.Arumugham & Ors. the Supreme Court held that the Courts cannot
substitute their own views for the views of the government or direct a
new policy based on the Court's view.
25. In the decision reported as 2011 (10) SCC 121 Hardev Singh Vs.
Union of India the issue before the Supreme Court was with regard to the
change of promotion policy from based on 'value judgment' to
'quantification method'. Relying upon the decision reported as 1999 (3)
SCC 696 Virender S.Hooda Vs. State of Haryana, the Supreme Court
held that it is always open to an employer to change its policy in relation
to giving promotion to the employees and the Court would normally not
interfere in such policy decisions.
26. In the decision reported as 2014 (13) SCC 296 Secretary, Govt.
(NCT of Delhi) & Ors. Vs. Grade-I DASS Officers Association & Ors. the
Supreme Court while considering ACP Scheme held that the scheme
being a policy decision of the government, the Court will not interfere
with the same.
27. It is also claimed by the petitioners that the minimum of the
Revised Pay Band/Pay Scales as on January 01, 2006 has been fixed per
Section-II Part-A of the 1st Schedule to the Railway Services (Revised
Pay) Rules, 2008 and thus, the pay of the employees of RPF fixed under
Rule 7 of the Rules cannot be less than the minimum pay so fixed.
28. Rule 8 of the Rules deal with fixation of pay in the Revised Pay
Structure of the employees appointed as fresh recruits on or after January
01, 2006 and prescribes that the entry level pay in the Pay Band at which
the pay of direct recruits to a particular post carrying a specific Grade Pay
will be fixed on or after January 01, 2006. Section-II of Part-A of 1st
Schedule to the Railway Services (Revised Pay) Rules, 2008, as the
heading of the Section would make it clear, prescribes entry pay in the
revised pay structure for direct recruits appointed on or after January 01,
2006. Therefore, the pay structure prescribed under Section-II cannot be
invoked by an employee other than those who are appointed afresh by
way of direct recruitment on or after January 01, 2006. Undeniably, the
petitioners in this case, do not fall in this category. Therefore, the
petitioners cannot claim their pay to be fixed in the scales/Pay Bands as
prescribed in this Section.
29. The writ petition is accordingly dismissed but without any orders
as to costs.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
MARCH 17, 2015
mamta
