R.K. Sharma vs Union Of India And Ors.
2018 Latest Caselaw 6719 Del

$~21.
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                              Date of Decision: 13.11.2018

%       W.P.(C) 4760/2018 & C.M. No. 18339/2018

        R.K. SHARMA
                                                                  ..... Petitioner
                          Through:     Mr. Prateek Tushar Mohanty and Mr.
                                       Tushar Ranjan Mohanty, Advocates

                          versus

        UNION OF INDIA AND ORS.
                                                                ..... Respondent
                          Through:     Mr. Arun Bhardwaj, CGSC and Mr.
                                       Nikhil Bhardwaj, Adv. with Mr.
                                       Amardev Bahlwal, Section Officer
        CORAM:
        HON'BLE MR. JUSTICE VIPIN SANGHI
        HON'BLE MR. JUSTICE A. K. CHAWLA


VIPIN SANGHI, J. (ORAL)

1. The petitioner is aggrieved by the order dated 21.02.2017 passed by the Central Administrative Tribunal (CAT/ Tribunal) in O.A. No.38/2014. The petitioners claim for ante-dating his second financial upgradation benefit under the MACP scheme from 01.09.2008 to 01.01.2006 has been rejected by the tribunal.

2. At the outset, learned counsel for the petitioner submits that he limits his claim to preponement of the date of grant of second financial upgradation under the MACP scheme to 01.01.2006, and he does not claim any benefit under the Non Functional Upgradation (NFU) scheme provided for under the office memorandum dated 24.04.2009. Learned counsel for the petitioner clarifies that he had sought to rely upon the OM dated 24.04.2009 - by which NFU scheme was formulated, only to contend that like the NFU scheme was made applicable from 01.01.2006, so also the MACP scheme be made applicable from the said date and not from 01.01.2008 - as was sought to be contended by the respondent.

3. The petitioner was promoted to the post of Director with effect from 09.02.1994 in BICP (Tariff) Commission in the pre revised scale of 3700-125- 4700-1500-5000. He was granted the second financial upgradation under the MACP scheme in pay band IV with grade pay of 8700 with effect from 01.09.2008, which was the date on which the respondent claimed that the MACP scheme was implemented. Being aggrieved by the delay of grant of second financial upgradation from 01.09.2008, and on the basis that he was entitled to the said upgradation with effect from 01.01.2006, he approached the tribunal after his representation was rejected. As aforesaid, the tribunal has rejected his claim.

4. The submission of learned counsel for the petitioner, firstly, is that vide resolution dated 29.08.2008 issued by the Ministry of Finance, the 6th Central Pay Commission (CPC) recommendations were implemented. On the aspect of fixation of pay in the revised pay bands, it was provided that the basic pay drawn as on 01.01.2006 on the existing 5th CPC pay scales will be multiplied by factor of 1.86, and then round off to next multiple of 10. That would be the pay in the revised running pay band. The grade pay as approved by the government, corresponding to the pre revised pay scale was then to be added to the pay in the revised pay band, and the total of pay in the pay band and grade pay was to be the revised basic pay as on 01.01.2006. This mechanism for arriving at the basic pay under the 6th CPC was provided in clause (iv) of the opening paragraph of the aforesaid government resolution dated 29.08.2008. This resolution also provided in para 2 and 3 as follows:

"2. The Commission's recommendations and government decision thereon with regard to revised scales of pay and dearness allowance for civilian employees of the Central Government and personnel of All India Services as detailed in the Part A of the Annex I will be made effective from 1st day of January, 2006.

3. The revised allowances, other than dearness allowance, will be effective from 1st day of September, 2008".

5. The submission of learned counsel for the petitioner is that the revised scales of pay and dearness allowance in respect of civilian employees of the Central Government and personnel of All India Services detailed in Part A of Annexure 1 was made effective from 01.01.2006. However, a distinction was drawn insofar as payment of revision of other allowances (other dearness allowance) are concerned, and the effective date was consciously prescribed as 01.09.2008. Attention is also drawn to Part A of Annexure 1 and to the ACP scheme incorporated in the 6th CPC. The aforesaid government resolution incorporated the modified ACP scheme, which provided that the financial upgradation under the scheme will be available whenever a person has spent 10 years continuously in the same grade. Further, three upgradation after 10, 20 and 30 years of service will be allowed.

6. Learned counsel for the petitioner submits that para materia with the revision of pay scales introduced for the civilian employees of the Central Government, the Central Government also notified the revision of pay scales in respect of the personnel of the Armed Forces. In Union of India & Ors. v. Balbir Singh Turn & Anr., in C.A. Diary No.3744/2016, decided on 08.12.2017 along with several other similar cases, the issue that arose before the Supreme Court as to whether the MACP scheme in respect of the defence personnel would be effective from 01.01.2006, or 01.09.2008 - as contended by the Government.

7. The Supreme Court extensively considered the provisions of the 6th CPC report and concluded that the financial upgradation under the MACP scheme would apply from 01.01.2006, and not from 01.09.2008. The relevant extract from this decision reads as follows:

"6. The question that arises for decision is whether the benefit of MACP is applicable from 01.01.2006 or from 01.09.2008.

7. The answer to this question will lie in the interpretation given to the Government Resolution, relevant portion of which has been quoted hereinabove. A bare perusal of Clause(i) of the Resolution clearly indicates that the Central Government decided to implement the revised pay structure of pay bands and grade pay, as well as pension with effect from 01.01.2006. The second part of the Clause lays down that all allowances except the Dearness Allowance/relief will be effective from 01.09.2008. The AFT held, and in our opinion rightly so, that the benefit of MACP is part of the pay structure and will affect the grade pay of the employees and, therefore, it cannot be said that it is a part of allowances. The benefit of MACP if given to the respondents would affect their pension also.

8. We may also point out that along with this Resolution there is Annexure-I. Part-A of Annexure-I deals with the pay structure, grade pay, pay bands etc., and Item 10 reads as follows :-

10     Assured Career Progression Scheme for       Three       ACP
       PBORs.                                      upgradation
       The Commission recommends that the          after 8, 16 and
       time bound promotion scheme in case of      24 years of
       PBORs shall allow two financial             service has been
       upgradations on completion of 10 and        approved. The
       20 years of service as at present. The      upgradation will
       financial upgradations under the            take place only
       scheme shall allow benefit of pay           in the hierarchy
       fixation equal to one increment along       of Grade pays,
       with the higher grade pay. As regards       which need not
       the other suggestions relating to           necessarily be
       residency period for promotion of           the hierarchy in
       PBORs Ministry of Defence may set up        that particular
       an Inter-Services Committee to consider     cadre.
       the matter after the revised scheme of
       running bands is implemented (Para
       2.3.34)

Part-B of Annexure-I deals with allowances, concessions & benefits and Conditions of Service of Defence Forces Personnel. It is apparent that the Government itself by placing MACP in Part- A of Annexure-I was considering it to be the part of the pay structure.

9. The MACP Scheme was initially notified vide Special Army Instructions dated 11.10.2008. The Scheme was called the Modified Assured Career Progression Scheme for Personnel Below Officer Rank in the Indian Army. After the Resolution was passed by the Central Government on 30.08.2008 Special Army Instructions were issued on 11.10.2008 dealing with revision of pay structure. As far as ACP is concerned Para 15 of the said letter reads as follows:-

"15. Assured Career Progression. In pursuance with the Government Resolution of Assured Career Progression (ACP), a directly recruited PBOR as a Sepoy, Havildar or JCO will be entitled to minimum three financial upgradations after 8, 16 and 24 years of service. At the time of each financial upgradation under ACP, the PBOR would get an additional increment and next higher grade pay in hierarchy.

xx xx xx"

Thereafter, another letter was issued by the Adjutant General Branch on 03.08.2009. Relevant portion of which reads as follows:-

".......The new ACP (3 ACP at 8, 16 and 24 years of service) should be applicable w.e.f. 1 Jan 2006, and the old provns (operative w.e.f. the Vth Pay Commission) would be applicable till 31 Dec. 05. Regular service for the purpose of ACP shall commence from the date of joining of a post in direct entry grade.

xx xx xx"

Finally, on 30.05.2011 another letter was issued by the Ministry of Defence, relevant portion of which reads as follows:-

"5. The Scheme would be operational w.e.f. 1st Sep. 2008. In other words, financial up-gradations as per the provisions of the, earlier ACP scheme (of August 2003) would be granted till 31.08.2008."

Therefore, even as per the understanding of the Army and other authorities up till the issuance of the letter dated 30.05.2011 the benefit of MACP was available from 01.01.2006.

10. As already held by us above, there can be no dispute that grant of ACP is part of the pay structure. It affects the pay of the employee and he gets a higher grade pay even though it may be in the same pay band. It has been strenuously urged by Col. R. Balasubramanian, learned counsel for the UOI that the Government took the decision to make the Scheme applicable from 01.09.2008 because many employees would have lost out in case the MACP was made applicable from 01.01.2006 and they would have had to refund the excess amount, if any, paid to them. His argument is that under the old Scheme if somebody got the benefit of the ACP he was put in the higher scale of pay. After merger of pay scales into pay bands an employee is only entitled to higher grade pay which may be lower than the next pay band. Therefore, there may be many employees who may suffer.

11. We are only concerned with the interpretation of the Resolution of the Government which clearly states that the recommendations of 6th CPC as modified and accepted by the Central Government in so far as they relate to pay structure, pay scales, grade pay etc. will apply from 01.01.2006. There may be some gainers and some losers but the intention of the Government was clear that this Scheme which is part of the pay structure would apply from 01.01.2006. We may also point out that the Resolution dated 30.08.2008 whereby the recommendation of the Pay Commission has been accepted with modifications and recommendations with regard to pay structure, pay scales, grade pay etc. have been made applicable from 01.01.2006. This is a decision of the Cabinet. This decision could not have been modified by issuing executive instruction. The letter dated 30.05.2011 flies in the face of the Cabinet decision reflected in the Resolution dated 30.08.2008. Thus, administrative instruction dated 30.05.2011 is totally ultra vires the Resolution of the Government." (emphasis supplied)

8. On the other hand, the submission of learned counsel for the respondent is that the conscious decision taken by the Central Government is to grant the financial upgradation under the MACP scheme only from 01.09.2008. The petitioner cannot claim the implementation of the MACP scheme from 01.01.2006.

9. Having heard learned counsels and perused the record as well as the judgment of the Supreme Court in Balbir Singh Turn (supra), we are of the view that the petitioner is entitled to the grant of the second financial upgradation under the MACP scheme, provided he is found fit under the relevant rules and schemes, with effect from 01.01.2006.

10. In Balbir Singh Turn (supra), the Supreme Court has held that MACP is a part of the pay structure and would affect the grade pay of the employees and it could not be stated that it is a part of the allowances. The benefit of MACP if given to the employee, would affect his pension also. The Supreme Court has also held that the stand taken by the government that the MACP scheme was made applicable from 01.09.2008 through a conscious decision was ultra vires the resolution of the government, founded upon a cabinet decision.

11. The ratio of the decision in Balbir Singh Turn (supra) is squarely attracted even in the present case, since the 6th CPC implemented in respect of the civilian employees of the Central Government is para materia with the scheme implemented in respect of the defence personnel.

12. Accordingly, we allow the present petition to the aforesaid extent. The respondent is directed to grant the second financial upgradation to the petitioner under the MACP scheme with effect from 01.01.2006, provided he was entitled to the said benefit from the said date in all other respects. The respondent shall take steps and pass appropriate orders within the next four weeks. The petitioner shall be entitled to costs of Rs.5,000/-.

13. The petition stands disposed of in the aforesaid terms.

VIPIN SANGHI, J

A. K. CHAWLA, J NOVEMBER 13, 2018 sr