National Council Of Educational ... vs Anita Gupta & Anr.
2016 Latest Caselaw 910 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI
+                       W.P.(C) 2918/2015
                                 Date of decision: 5th February, 2016

NATIONAL COUNCIL OF EDUCATIONAL RESEARCH &
TRAINING & ANR                             ..... Petitioners
             Through    Mr. R.K.Singh and Ms. Deepa Rai,
             Advocates.

                        versus


ANITA GUPTA & ANR.                          ..... Respondents
             Through     Respondent No.1 in person with
             Mr. Y.K. Gupta, Attorney/husband.
             Mr. Arun Bhardwaj, CGSC with Mr. Satya Ranjan
             Swain, GP for UOI.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAJMI WAZIRI

SANJIV KHANNA, J. (ORAL)

1. National Council of Educational Research and Training

(NCERT) impugns final order and judgment dated 21 st November,

2014, passed by the Principal Bench of the Central Administrative

Tribunal („Tribunal‟, for short) allowing Original Application

No.2498/2012 filed by Anita Gupta, the respondent No.1 herein with

the direction that she was entitled to replacement pay scale in Pay

Band-3 of Rs.15600-39100 with Grade Pay of Rs.5400 with effect

from 1st January, 2006 and with effect from 29th October, 2010, Grade

Pay of Rs.6600 as the third financial upgradation under the Modified

Assured Carrier Progression Scheme (MACP Scheme, for short). The

Tribunal has also directed that the first respondent would be entitled to

consequential arrears arising from the said directions.

2. The reasoning given by the Tribunal is to be found in

paragraphs 5 and 6 of the impugned order, which, for the sake of

convenience, are reproduced below:-

"5. On the basis of the above, the Ministry of Corporate Affairs issued OM dated 9.6.2011 by which the officer concerned of that Ministry was granted Grade Pay of Rs.5400/- in PB-III as replacement pay. The applicant has also relied on the order issued by Department of Revenue, Central Board of Excise and Customs vide their File No.A-23011/29/2010-Ad.IIA on 20.5.2011 by which based in the order of Madras Bench of this Tribunal in a bunch of OAs No.821, 930, 931 and 1098 of 2010 granted PB-III with Grade Pay of Rs.5400/- to all those who had got financial upgradation in the promotional hierarchy under the ACP Scheme on or before 31.8.2008 in the pay scale of Rs.8000-13500.

6. On consideration of the rival submissions, we find that the issue to be resolved in this case is whether on grant of 6th CPC scales, the applicant deserves to be placed in PB-III with Grade Pay of Rs.5400/- or PB-II with Grade Pay of Rs.5400/-. Since the two have been treated as a separate pay scales under the MACP

Scheme, if she is placed in PB-II with Grade Pay of Rs.5400/- as replacement of scale of Rs.8000-13500 which she has got as second ACP benefit, then on grant of 3rd MACP, she will move to PB-III with Grade Pay of Rs.5400/-. On the other hand, if the replacement scale given to her is PB-III with Grade Pay of Rs.5400/- then she will move to PB-III with Grade Pay of Rs.6600/- on grant of 3rd MACP benefit. It appears that earlier the view of the DoP&T was that employees who were in Group B (sic) should get PB-II with Grade Pay of Rs.5400/- as replacement scale for the scale of Rs.8000- 13500. However, after a number of court cases and on re-consideration of the matter in consultation with the Ministry of Finance, a clarification was issued to Ministry of Corporate Affairs that those getting ACP benefits in promotional hierarchy prior to 31.8.2008 to the grade of Rs.8000-13500 be given replacement scale of pay of PB-III with Grade Pay of Rs.5400/- after implementation of 6th CPC. This benefit was granted to an officer of Ministry of Corporate Affairs. Also Department of Revenue has issued a general circular granting the same to their employees. In our opinion, the applicant also deserves the same benefit on grounds of parity."

3. Brief facts, relevant for the purpose of the present controversy,

are that respondent No.1 was appointed as T.V. Producer, Grade-III

(Group B post) on 29th October, 1980. She was promoted as T.V.

Producer, Grade-II with effect from 21st August, 1985, in the

replacement pay scale of Rs.5500-9000 after implementation of the

Fifth Pay Commission. She was granted financial upgradation under

the Assured Carrier Progression Scheme (ACP Scheme, for short)

with effect from 29th October, 2004 vide order dated 16th November,

2005. Consequent to the grant of financial upgradation, the petitioner

was entitled to pay in the scale of Rs.8000-13500. The parties are not

at lis as to respondent No.1‟s entitlement in the scale of Rs.8000-

13500, with effect from 29th October, 2004.

4. The Sixth Pay Commission, implemented vide order dated 29th

August, 2008, was made applicable with effect from 1st January, 2006.

Accordingly, the first respondent became entitled to the replacement

or corresponding pay band/ scale applicable to pay scale of Rs.8000-

13500. The replacement or corresponding pay scale of Rs.8000-13500

is reflected in two pay bands; the existing or corresponding Pay Band-2

of Rs. 9300-34800 with Grade Pay of Rs.5400 and the new Pay Band-3

of Rs.15600-39100 with Grade Pay of Rs.5400. This is the primary

cause and reason of confusion and the dispute. The aforesaid pay band

of Rs 15600-39100 with Grade Pay of Rs 5400 in Pay Band-3 is the

entry level pay band and grade pay for a Group A post. It is a new scale

and not a replacement scale for S-15. For the sake of convenience, we

would reproduce the replacement pay bands and grade pay for the pay

scale of Rs.8000-13500 and the pay structure under the Sixth Pay

Commission. The relevant columns of the table read as under:-

Ministry of Finance (Department of Expenditure) Gazette Notification dated August 29 th,

THE FIRST SCHEDULE (Rules 3&4) PART-A Section I

Revised Pay Bands and Grade Pays for posts carrying present scales in Group „A‟, „B‟, „C‟, „D‟ except posts for which different revised scales are notified separately.

"

Present Scale (5th Pay Commission)              Revised Pay Structure (6th Pay Commission)
S.    Post/Grade Present Scale       Name       of      Pay Corresponding               Corresponding
No                                   Band/Scale             Pay Bands/Scales            Grade Pay
16    S-15         8000-275-         PB-2                   9300-34800                  5400
                   13500
17    New Scale    8000-275-         PB-3                     15600-39100               5400
                   13500
                   (Group        A
                   Entry)
                                                                                    "

Clause (7) of Rule 3 of the Central Civil Service (Revised Pay)

Rules, 2008 stipulates that "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

Columns 5 and 6 thereof, unless a different revised pay band and

grade pay or pay scale is notified separately for that post. Similarly,

Rule 4 of the aforesaid Rules defines „scale of pay‟ of a post as the

pay band and grade pay or the pay scale as applicable, of every

post/grade specified in Column 2 of the First Schedule to be as

specified against it in Columns 5 & 6 thereof.

5. By the office order dated 20th September, 2010, the first

respondent was informed that consequent to implementation of the

Sixth Pay Commission recommendations, her pre-revised pay scale of

Rs.8000-13500 in Pay Band-2, has been revised to Pay Band-3 of

Rs.15600-39100 with Grade Pay of Rs.5400 with effect from 1 st

January, 2006. The order also refers to the approval granted by the

Executive Committee Section of the NCERT and clarification issued

by the Ministry of Human Resource and Development. The result of

the said office order was that with effect from 1 st January, 2006, the

respondent was granted replacement pay scale in Pay Band-3 of

Rs.15600-39100 with Grade Pay of Rs.5400, instead of Rs.9300-

34800 in Pay Band-2 with Grade Pay of Rs.5400.

6. By a subsequent office order dated 19th-20th May, 2011, the first

respondent was granted benefit of financial upgradation under MACP

Scheme with effect from 20th October, 2010 in the Grade Pay of

Rs.6600 in Pay Band-3 of Rs 15600-39100.

7. By office order dated 1st March, 2012, the earlier order dated

19th-20th May, 2011 was withdrawn and the respondent No.1 was

informed that upon financial upgradation, she was entitled to the

Grade Pay of Rs.5400 in Pay Band-2 of Rs 9300-34800 and not the

Grade Pay of Rs.6600 in Pay Band- 3 of Rs 15600-39100 given to her

vide earlier order dated 19th-20th May, 2011. This order dated 1st

March, 2012 records that the said order was passed on the basis of

terms and conditions in DoP&T OM No.35034/3/2008-Estt (D) dated

19th May, 2009, as amended from time to time.

8. The order dated 1st March, 2012 was made subject matter of

challenge by the first respondent in OA No.2498/2012, which stands

allowed by the impugned order dated 21st November, 2014, holding

that the said respondent was entitled to Grade Pay of Rs 6600 upon

financial upgradation from 20th October, 2010 under the MACP Scheme.

9. Having heard learned counsel for the petitioner, the respondent

in person, who is present with her husband Y.K. Gupta, and counsel

for the Ministry of Human Resources and Development, respondent

No.2, we are inclined to allow the present writ petition for the reasons

set out below.

10. The first question which we perceive and must be answered is

with respect to the appropriate replacement or corresponding pay band

and pay scale which the first respondent was entitled to after

implementation of the Sixth Pay Commission. As noticed above, the

first respondent on the first financial upgradation under the ACP

scheme, was granted the pay scale of Rs.8000-13500, which was

payable to T.V. Producer, Grade-I, though she was posted and

working as T.V. Producer, Grade-II. This financial upgradation was

payable to her with effect from 29th October, 2004 till 28th October,

2010, when she became entitled to the second financial upgradation

under the MACP Scheme.

11. Having examined the documents, we find and accept that T.V.

Producer, Grade-II is a Group B post in the pay scale S-10 and T.V.

Producer, Grade-I is a Group A post in the pay scale S-15. The

replacement pay band of T.V. Producer, Grade-I (S-15) after

implementation of the Sixth Pay Commission became Pay Band-2 in

the pay scale of Rs.9300-34800 with Grade Pay of Rs.5400. This is

clear from the revised pay scales as approved by the Government

accepting the recommendation of the Sixth Pay Commission. Pay

Band 3 of Rs 15600-39100 was a new scale introduced by the Sixth

Pay Commission as a Group A entry pay scale. It was not a

replacement pay band/scale as such. The Office Memorandum of the

Ministry of Finance, Expenditure Dept., dated 30th August, 2008,

regarding implantation of the Sixth Pay Commission

recommendations and fixation of pay and payment of arrears, states

that under Rule 6 of the Central Civil Services (Revised Pay) Rules,

2008, government servants were required to exercise their option for

drawing pay as per the revised pay structure in the format prescribed

in the second schedule. Sub-paragraph (ii) to paragraph 2 of the

Office Memorandum dated 30th August, 2008, reads:-

"(ii) The tables in Annex-I will be applicable in cases where normal replacement pay scales have been approved by the Government. In cases of upgradation of posts and merger of pre-revised pay scales, fixation of pay will be done as prescribed in Note 2A and 2B below Rule 7(1) and in the manner indicated in Illustration 4A & 4B respectively of the Explanatory Memorandum to the CCS (RP) Rules, 2008."

The relevant portion of Annexure-1, which relates to revised or

replacement pay scale applicable to S-15, for the sake of

completeness, is also reproduced below:-

"Pre-revised scale (S-15) Revised Pay Band + Grade Pay Rs.8000-275-13500 PB-2 Rs.9300-34800 + 5400"

When we read the first sentence of sub-paragraph (ii) to paragraph 2

with the table relating to revised pay scale of S-15, i.e. the

replacement pay band and grade pay, the position becomes effulgent

and clear. The replacement pay scale of pre-revised pay scale S-15 of

Rs.8000-13500 as approved by the Government is Rs.9300-34800 plus

Grade Pay of Rs.5400 in Pay Band-2. Sub-paragraph (ii) also states

that this would be the normal replacement pay scale and in case of

upgradation of posts and merger of pre-revised pay scales, fixation of

pay will be done as prescribed in Note 2A and 2B below Rule 7(1) of

the Central Civil Services (Revised Pay) Rules, 2008. It is not the

case of the first respondent that, in this case, there was an upgradation

of posts or merger of pre-revised pay scales. Thus, this portion of sub-

paragraph (ii) would not be applicable.

12. The necessary consequence and sequitur would follow. The first

respondent upon implementation of the Sixth Pay Commission was

entitled to pay scale of Rs.9300-34800 with Grade Pay of Rs.5400 in

Pay Band-2 and not to Rs.15600-39100 with Grade Pay of Rs.5400 in

Pay Band-3.

13. We must, at this stage, refer to the contention raised by the

respondent that T.V. Producer, Grade-I is a Group A post and,

therefore, pay scale of Rs.15600-39100 plus Grade Pay of Rs.5400 in

Pay Band-3 would be payable to her as the financial upgradation

under the ACP Scheme. She relies upon paragraphs 7, 9 and 10 of the

conditions for grant of ACP which for the sake of convenience, are

reproduced below:-

"7. Financial upgradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating new posts for the purpose. However, in case of isolated posts, in the absence of defined hierarchical grades, financial upgradation shall be given by the Ministries/Departments concerned in the immediately next higher (standard/common) pay- scales as indicated in Annexure-II which is in keeping with Part-A of the First Schedule annexed to the Notification dated September 30, 1997 of the Ministry of Finance (Department of Expenditure). For instance, incumbents of isolated posts in the pay-scale S-4, as indicated in Annexure-II, will be eligible for the proposed two financial upgradations only to the pay- scales S-5 and S-6. Financial upgradation on a dynamic basis (i.e. without having to create posts in the relevant scales of pay) has been recommended by the Fifth Central Pay Commission only for the incumbents of isolated posts which have no avenues of promotion at all. Since financial upgradations under the Scheme shall be personal to the incumbent of the isolated post, the same shall be filled at its original level (pay-scale) when vacated. Posts which are part of a well-defined cadre shall not qualify for the ACP Scheme on „dynamic‟ basis. The ACP benefits in their case shall be granted conforming to the existing hierarchical structure only;

xxx

9. On upgradation under the ACP Scheme, pay of an employee shall be fixed under the provisions of FR 22(I) a(1) subject to a minimum financial benefit of Rs.100/- as per the Department of Personnel and Training Office Memorandum No.1/6/97-Pay.I dated July 5, 1999. The financial benefit allowed under the ACP Scheme shall be final and no pay-fixation benefit shall accrue at the time of regular promotion i.e. posting against a functional post in the higher grade;

10. Grant of higher pay-scale under the ACP Scheme shall be conditional to the fact that an employee, while accepting the said benefit, shall be deemed to have given his unqualified acceptance for regular promotion on occurrence of vacancy subsequently. In case he refuses to accept the higher post on regular promotion subsequently, he shall be subject to normal debarment for regular promotion as prescribed in the general instructions in this regard. However, as and when he accepts regular promotion thereafter, he shall become eligible for the second upgradation under the ACP Scheme only after he completes the required eligibility service/period under the ACP Scheme in that higher grade subject to the condition that the period for which he was debarred for regular promotion shall not count for the purpose. For example, if a person has got one financial upgradation after rendering 12 years of regular service and after 2 years therefrom if he refuses regular promotion and is consequently debarred for one year and subsequently he is promoted to the higher grade on regular basis after completion of 15 years (12+2+1) of regular service, he shall be eligible for consideration for the second upgradation under the ACP Scheme only after rendering ten more years in addition to two years of service already rendered by him after the first

financial upgradation (2+10) in that higher grade i.e. after 25 years (12+2+1+10) of regular service because the debarment period of one year cannot be taken into account towards the required 12 years of regular service in that higher grade;"

Reference to paragraph 7 is necessary, for it specifies that grant of

next higher grade would be in accordance with the existing hierarchy

in a cadre/category of posts without creating new posts for the

purpose. The respondent, as noticed and recorded above, was granted

financial upgradation with effect from 29th October, 2004 in the pay

scale of Rs 8000-13500. The real issue is deciphering the equivalent or

replacement pay scale sanctioned and authorised pursuant to the

implementation of the Sixth Pay Commission‟s recommendations.

This question cannot be determined by referring to the ACP scheme,

but by reference to the Sixth Pay Commission‟s recommendations. It

may become necessary to refer to the ACP Scheme when required and

necessary in terms of the Office Memorandum relating to

implementation of the Sixth Pay Commission. The ACP Scheme and

corresponding financial upgradation applicable would govern the

position as to the next higher grade in accordance with the existing

hierarchy in a cadre/category of posts. It would not per se guide us in

finding out the replacement pay scale or grade pay, which was

sanctioned and allowed pursuant to implementation of the Sixth Pay

Commission‟s recommendations. Thus, a person, who was earlier in

S-13 grade, would be entitled to financial upgradation to pay scale of

the next higher promotional post without in fact being promoted. The

financial upgradations under the ACP Scheme are personal and have

no relevance to the seniority position. These are applicable till the

government employee is granted regular promotion in the hierarchy.

Thereupon, the said employee is entitled to the applicable pay scale in

the promotional post. The respondent was not promoted to a Group A

post. She was given financial upgradation only.

14. Having reached the aforesaid conclusion, there would be no

difficulty in holding that consequent to the financial upgradation under

the ACP Scheme with effect from 29th October, 2004, the respondent

upon implementation of the Sixth Pay Commission‟s

recommendations, was to be placed in the Pay Band-2 Rs.9300-34800

with Grade Pay of Rs.5400 and not in Pay Band-3 Rs.15600-39100

with Grade Pay of Rs.5400.

15. MACP Scheme is somewhat different from the ACP Scheme.

The difference prominently arises and is consequent to introduction of

pay band and grade pay concept by the Sixth Pay Commission, doing

away with the pay scales. Some other significant changes were also

introduced by the MACP Scheme. Two major modifications are that

firstly, instead of two financial upgradations at the end of 12 years and

24 years of regular service under the ACP Scheme, the MACP

Scheme postulates financial upgradation at the end of 10, 20 and 30

years of continuous regular service and secondly, MACP scheme

merely envisages placement in the immediate next higher grade pay in

the hierarchy of Pay Bands and grade pay as given in Section 1, Part A

of the CCS (Revised Pay) Rules, 2008 and not the next promotion

post. Unlike the ACP scheme which required placement in the pay

scales of the next higher post, the MACP scheme postulates grant of

financial upgradation confined only to next higher grade pay, and not

grade pay in the hierarchy of posts. (See Swarn Pal Singh v. UOI &

Ors W.P.(C) No. 5082/2013, decided on 17th March, 2015).

16. Pursuant to implementation of the MACP Scheme, the

respondent was granted financial upgradation with effect from 29 th

October, 2010. Initially she was given Grade Pay of Rs.6600 in Pay

Band Rs 15600-39100 vide order dated 19th-20th May, 2011, which

was corrected and modified to Grade Pay of Rs.5400 in Pay Band

15600-39100 vide order dated 1st March, 2012. It is obvious that the

order dated 1st March, 2012 meets the mandate of law and is the

correct order, for the respondent was earlier wrongly granted pay scale

of Rs.15600-39100 and Grade Pay of Rs.5400 in Pay Band-3 instead

of pay scale of Rs.9300-34800 and Grade of Rs.5400 in Pay Band-2.

17. It may be relevant here to reproduce paragraphs 2, 4, 6, 8, and

8.1 of the MACP Scheme, which read:-

"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 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 will be given only at the time of regular promotion.

4. Benefit of pay fixation available at the time of regular promotion shall also be allowed at the time of financial upgradation 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 Rs. 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 Rs. 2000 and his pay will be fixed by granting him one increment plus the difference of grade pay (i.e. Rs. 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 Rs. 2400, on regular promotion, he will only be granted the difference of grade pay between Rs. 2000 and Rs. 2400. No additional increment win be granted at this stage.

Xxx

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.

6.1 ln the case of ACP upgradations granted between 01.01.2006 and 31.08.2008, the Government servant has the option under the CCS (RP) Rules, 2008 to have his pay fixed in the revised pay structure either (a) w.e.f 01.01.2006 with reference to his prerevised scale as on 01.01.2006; or (b) w.e.f the date of his financial upgradation under ACP with reference to the pre-revised scale granted under ACP. ln case of option (b), he shan be entitled to draw his arrears of pay only from the date of his option i.e. the date of financial upgradation under ACP.

6.2 ln cases where financial upgradation had been granted to Government servants in the next higher scale in the hierarchy of their cadre as per the provisions of the ACP Scheme of August, 1999, but whereas as a result of the implementation of Sixth CPC's recommendations, the next higher post in the hierarchy of the cadre has been upgraded by granting a higher grade pay, the pay of such employees in the revised pay structure will be fixed with reference to the higher grade pay granted to the post. To illustrate, in the case of Jr. Engineer in CPWD, who was granted ACP in his hierarchy to the grade of Asstt. Engineer in the pre-revised scale of Rs.6500-10500 corresponding to the revised grade pay of Rs.4200 in the pay band PB-2, he will now be granted grade pay of Rs4600 in the pay band PB-2 consequent upon upgradation of the post of Asstt. Enggs. in CPWD by granting them the grade pay of Rs.4600 in PB-2 as a result of Sixth CPC's recommendation. However, from the date of implementation of the MACPS, all the financial upgradations under the Scheme should be done strictly in accordance with the hierarchy of grade pays in pay bands as notified vide CCS (Revised Pay) Rules, 2008.

xxx

8. Promotions earned in the post carrying same grade pay in the promotional hierarchy as per Recruitment Rules shall be counted for the purpose of MACPS.

8.1 Consequent upon the implementation of Sixth CPe's recommendations, grade pay of Rs. 5400 is now in two pay bands viz., PB-2 and PB-3. The grade pay of Rs. 5400 in PB-2 and Rs.5400 in PB-3 shall be treated as separate grade pays for the purpose of grant of upgradations under MACP Scheme."

18. As noticed and highlighted, Paragraph 2 states that the MACP

Scheme envisages placement in the immediate next higher grade pay

in the hierarchy of the recommended pay bands and grade pay as

given in Section 1, Part-A of the first schedule of the CCS (Revised

Pay) Rules, 2008. Paragraph 4 states that benefit of pay fixation

available at the time of regular promotion shall be allowed at the time

of financial upgradation under the Scheme. Paragraph 6 of the MACP

Scheme records that all the employees who have been granted

financial upgradations under the ACP Scheme till 1st January, 2006,

which is the case in hand as the respondent was granted benefit of

ACP Scheme vide order dated 16th November, 2005 with effect from

29th October, 2004, will have their revised pay fixed with reference to

the revised pay scale prescribed by the Sixth Pay Commission i.e. in

terms of the CCS (Revised Pay) Rules, 2008, which we have

examined in paragraph 4 above. Paragraph 6.1 relates to financial

upgradations granted between 1st January, 2006 and 31st August, 2008,

which is not relevant for our case. However, the said paragraph is in

consonance with what we have elucidated above while dealing with

the question of replacement pay scale applicable to the respondent

after implementation of the Sixth Pay Commission. Paragraph 6.2

relates to the cases where financial upgradation has been granted as

per the provisions of the ACP Scheme, but as a result of

implementation of the Sixth Pay Commission‟s recommendations, the

next higher post in the hierarchy of the cadre has been upgraded by

granting a higher grade pay. Paragraph 6.2 will only apply in case

there is upgradation in the next higher scale in the hierarchy. This is

manifest from the illustration or example given in paragraph 6.2. The

example given in the said paragraph is of Junior Engineer of CPWD,

who was granted first ACP to the grade of Assistant Engineer in the

pre-revised scale of Rs.6500-10500 with the corresponding Grade Pay

of Rs.4200 in the Pay Band-2. He would be granted Grade Pay of

Rs.4600 in Pay Band-2 consequent upon upgradation of post of

Assistant Engineer in CPWD as a result of implementation of the

Sixth Pay Commission‟s recommendation. Paragraph 6.2 is not

applicable as there is no upgradation of posts.

19. Paragraph 8 stipulates that the promotions earned in the post

carrying the same grade pay, in the promotional hierarchy as per

Recruitment Rules shall be counted for the purpose of MACP Scheme.

Paragraph 8.1 is significant and makes specific reference to the Grade

Pay of Rs.5400, which is the highest grade pay in Pay Band-2 and is

the lowest grade pay in Pay Band-3. Therefore, financial upgradation

in such cases cannot be of the same grade pay. Paragraph 8.1 clarifies

that consequent to implementation of the Sixth Pay Commission‟s

recommendations, financial upgradation granted to a government

servant, who is already in Pay Band-2 with Grade Pay of Rs.5400,

would not undergo a change and the Pay Band-3 of Rs 15600-39100

with Grade Pay of Rs 5400 shall be treated as a separate grade pay for

the purpose of grant of upgradation under the MACP Scheme.

Paragraph 8.1 is clearly applicable in the present case.

20. Resultantly, grant of financial upgradation under ACP scheme

and MACP scheme may be different. It is possible that an employee

may get lower or less financial upgradation under the MACP scheme,

than an employee who was pre 1.9.2008 granted financial upgradation

under the ACP scheme. This has to be accepted, as the terms of the

two schemes are different. In Swarn Singh (supra) it has been held:-

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 the ACP/MACPS are different than regular promotions in the grade.

23. Even otherwise, as held in W.P.(C) No.3420/2010 R.S.Sengor & Ors. v. UOI & Ors., 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 v. 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 v. 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 V. 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. v. 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."

21. Read in this manner, the respondent would be entitled to

financial upgradation in the pay scale of Rs.15600-39100 with Grade

Pay of Rs.5400 in Pay Band-3 with effect from 29th October, 2010,

when she became entitled to financial upgradation under the MACP

Scheme. Thus, the petitioners had correctly computed and applied the

MACP Scheme in the case of the respondent while passing the order

dated 1st March, 2012.

22. During the course of hearing before us, the respondent had

drawn our attention to the file noting dated 27th April, 2012, on

clarification sought by the petitioners from the Department of

Personnel and Training. We do not think the said noting would assist

the respondent in any manner. Indeed, quite to the contrary, in their

counter affidavit the Ministry of Human Resource and Development

in consultation with the Department of Personnel and Training, have

categorically averred that the respondent‟s replacement Pay Band and

Grade Pay, pursuant to implementation of the Sixth Pay Commission‟s

recommendations, would be Rs. 9300-34800 with Grade Pay of

Rs.5400 in Pay Band-2 and not the pay band of Rs.15600-39100 and

Grade Pay of Rs.5400 in Pay Band-3.

23. It is apparent that there is a substantial gap and difference in pay

bands Rs. 9300-34800 and Rs.15600-39100, though the initial Grade

Pays of the two Pay Bands is identical at Rs 5400. The next Grade Pay

in Pay Band 15600-39100 is Rs 6600. If we were to accept the

submission of the first respondent, it would mean that the said

respondent had secured and was granted one step higher replacement

pay by implementation of the Sixth Pay Commission and was then

granted financial upgradation/promotion, which is not true and is

unrealistic. We do not find the first respondent‟s contention tenable

and acceptable.

24. The first respondent has filed beforme us a copy of the order

dated 30th June, 2014. The said order grants regular promotion to the

respondent as T.V. Producer, Grade-I with effect from 19th March,

2014 and she has been placed in the Pay Band-2 with pay scale of Rs.

9300-34800 plus Grade Pay of Rs.5400. In view of the financial

upgradation with effect from 29th October, 2010, she would be entitled

to the pay scale of Rs.15600-39100 with Grade Pay of Rs.5400 in Pay

Band-3. The said order also refers to the pay bands applicable to other

employees, who have been working as T.V. Producer, Grade-I. We

notice that these officers have been working as T.V.Producer, Grade-I

since 1985 and until 1998 in the said grades. They have been

described as the erstwhile Group A officers. In case of the said

officers, it has been observed that they shall be paid in Pay Band-3, 1st Rs.15600-39100 with Grade Pay of Rs.5400 with effect from

January, 2006. We do not have necessary details to ascertain and

know the factual matrix and distinguishing features. We would not

like to comment and give our findings by referring to a document

produced for the first time at the time of hearing. We have already

recorded above that with effect from 29th October, 2010, the

respondent would be also entitled to pay scale of Rs.15600-39100

with Grade Pay of Rs.5400 in Pay Band-2.

25. The petitioners have not asked for repayment or refund of salary

already paid and this is not the issue and contention raised before us.

26. In view of the aforesaid discussion, the writ petition is allowed

and the impugned order dated 21st November, 2014 passed by the

Tribunal is set aside. The petitioners have correctly computed and

applied MACP Scheme in the order dated 1st March, 2012. There

would be no order as to costs.

SANJIV KHANNA, J.

NAJMI WAZIRI, J.

FEBRUARY 05, 2016 NA