Delhi High Court
S.K. Saraswat & Ors vs Chief Secretary, Govt. Of ... on 12 October, 2022
$~51
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 12.10.2022
+ W.P.(C) 5106/2016
S.K. SARASWAT & ORS ..... Petitioners
versus
CHIEF SECRETARY, GOVT. OF NATIONAL CAPITAL
TERRITORY OF DELHI & ORS .....Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. Vinay Garg, Senior Advocate with Mr. Ankur
Chhibber, Mr. K.S.Rekhi, Mr. Parv Garg, Mr. Pawas
Kulshrestha and Mr. Nikunj Arora, Advocates.
For the Respondent: Mr. Satyakam, ASC for R-1 & 2.
Ms. Bharthi Raju, Senior Panel Counsel for R-3 & 4
(through VC)
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioners are aggrieved by order dated 27.02.2015 of the
Central Administrative Tribunal to the limited extent that the Tribunal
has directed that the petitioners be granted first financial upgradation
under the Modified Assured Career Progression Scheme (MACPS)
from the date of their entitlement, however, they would draw salary in
the new grade pay from the date of the order of the Tribunal i.e.
27.02.2015.
Signature Not Verified
Digital Signed By:KUNAL
MAGGU
Signing Date:15.10.2022 11:49:53
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
2. Petitioners are also aggrieved by the order dated 06.05.2016 of
the Tribunal whereby the review application filed by the petitioners
has been dismissed holding that there is no rule or law that would
make it obligatory on the Tribunal to grant the upgraded pay scale
with retrospective effect along with arrears and interest thereon.
3. Learned senior counsel appearing for the petitioners submits
that since the MACP scheme is in the nature of an incentive scheme,
petitioners would be entitled to the benefits from the date they become
eligible or the date as notified by the Government for the
implementation of the scheme, whichever is later.
4. Per contra Mr. Satyakam, learned standing counsel appearing
for the respondent submits that there was a doubt as to whether the
petitioners would be covered under the scheme or not and the
department was bonafidely pursuing the issue with the competent
authority.
5. He submits that the subject order dated 27.02.2015 was also
challenged by the respondents by way of a writ petition being W.P(C)
9266/2015. Said writ petition was dismissed by a coordinate bench of
this Court on 09.05.2016. He submits that a further challenge was
raised before the Supreme Court by way of a Special Leave Petition
being SLP (Civil) No.6860/2017 which has been dismissed on
03.08.2022.
Signature Not Verified
Digital Signed By:KUNAL
MAGGU
Signing Date:15.10.2022 11:49:53
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
6. Learned counsel fairly states that the challenge of the
department impugning the order dated 27.02.2015 to the extent held
the petitioners as eligible under the MACP Scheme was unsuccessful
upto the Supreme Court and accordingly the department has decided
to implement the order.
7. Learned counsel further submits that since the respondents had
impugned the order dated 27.02.2015 and the order has been upheld
upto the Supreme Court, the order of the Tribunal merges with the
order of the coordinate bench of this Court and the Supreme Court and
consequently the finding that the petitioners are not entitled to the
arrears and interest thereon for the period 01.09.2008 (i.e. the date on
which the Government has made the scheme effective) till the date of
the order dated 27.02.2015, has also attained finality.
8. Learned senior counsel appearing for the petitioners submits
that the petitioners had not impugned the said order earlier and the
challenge of the respondents was to the entitlement of the petitioners
and the question as to whether the same would be payable from
01.09.2008 or a later date was never an issue in those proceedings nor
was it ever urged by the respondents that it is payable from a later
date.
9. In so far as the entitlement of the petitioners is concerned to the
benefits under the MACP Scheme, since the challenge of the
respondents has been negated upto the Supreme Court, there is no
Signature Not Verified
Digital Signed By:KUNAL
MAGGU
Signing Date:15.10.2022 11:49:53
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
doubt on the same. Petitioners are covered under the MACP Scheme.
10. Further we may note that by order dated 22.03.2012 the
respondents had held that petitioners are not entitled to the benefits of
the MACP Scheme w.e.f 01.09.2008 or from due dates with arrears
under the MACP Scheme. Said decision was taken, not in respect of a
date of application of the scheme, but with regard to the very
entitlement of the petitioners. It was this order which was challenged
by the petitioners in the original application before the Tribunal
wherein the Tribunal held that petitioners were covered under the
scheme.
11. It was never the case of the respondents that the scheme is
applicable from a later date. In fact the respondents, for other eligible
employees, have made the scheme applicable from 01.09.2008. The
only dispute was with regard to the entitlement of the petitioners and
not with regard to the date of implementation of the scheme.
12. The entitlement of the petitioners having been upheld upto the
Supreme Court, respondents cannot refuse to implement the scheme
w.e.f the date notified by the respondents themselves.
13. Tribunal in its order dated 27.02.2015 has not given any reason
as to why the Tribunal has made the scheme applicable only w.e.f the
date of the order and not from the date notified by the Government
itself.
Signature Not Verified
Digital Signed By:KUNAL
MAGGU
Signing Date:15.10.2022 11:49:53
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
14. Reference may be had to the judgment of the Supreme Court in
Union of India vs. Ex HC/GD Virender Singh, 2022 SCC online SC
1058 as also the judgment of the Supreme Court in Union of India vs.
S.Ranjit Samuel, 2022 SCC online SC 368 wherein the subject MACP
scheme was also under consideration and the Supreme Court has
noticed that the scheme has been introduced w.e.f 01.09.2008.
15. In all cases where the employees were eligible, the scheme has
been made applicable from 01.09.2008. There is no rationale placed
on behalf of the respondents to justify as to why a different date be
taken for the petitioners for implementation of the MACP Scheme.
16. No such basis is also apparent from the impugned order which
in a passing reference merely states that the petitioners would draw
salary in the new grade pay from the date of the order without arrears.
17. Since the Tribunal has not given any rationale or justification
for postponing the date of the implementation of the scheme,
particularly when it was never the case of the respondents that the
scheme should be implemented from a later date, the impugned order
cannot be sustained to that limited extent.
18. The contention of learned counsel for the respondents that since
respondents had impugned the same order and order has been upheld
upto the Supreme Court and as such the petition is not maintainable, is
also not sustainable for the reason that the petitioners had filed a
Signature Not Verified
Digital Signed By:KUNAL
MAGGU
Signing Date:15.10.2022 11:49:53
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
review application before the Tribunal on 29.05.2015 by which time
the order had not yet been upheld by the coordinate bench of the High
Court. The review petition filed by the petitioners was disposed of on
06.05.2016 and the decision on the petition filed by the respondents
impugning the subject order was rendered by the Coordinate bench of
this Court on 09.05.2016.
19. First of all, petitioners in the other petition, which was filed by
the respondents, were merely arrayed as respondents and secondly
petitioners had already filed a review application before the Tribunal
prior to the order being passed by a coordinate bench of this Court
confirming the earlier order. Since the petitioners had not assailed the
order, filing of a writ petition by the respondents, would not preclude
the petitioners from challenging the finding or observation of the
Tribunal which is adverse to them. Merely because the respondents
chose to challenge the subject order would not foreclose the right of
the petitioners to impugn the subject order to the extent that the same
is prejudicial to the petitioners.
20. Further, in view of the fact that the respondents themselves have
implemented the MACP Scheme w.e.f 01.09.2008 (vide order dated
13.08.2012) and the consistent view of the Supreme Court is also that
the said scheme is applicable w.e.f 01.09.2008, we are of the view that
the impugned order dated 27.02.2015 to the limited extent that it holds
that the petitioners would draw salary in the new grade pay from the
date of the said order without arrears is not sustainable.
Signature Not Verified
Digital Signed By:KUNAL
MAGGU
Signing Date:15.10.2022 11:49:53
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
21. Accordingly, the same is set aside. It is directed that the
petitioners would be entitled to draw salary in the new grade pay from
the date of the implementation of the scheme or their respective
entitlement whichever is later, along with arrears and interest as
admissible in law.
22. The exercise of computation and disbursal of arrears be
completed within a period of eight weeks from today.
23. Petition is allowed in the above terms.
SANJEEV SACHDEVA, J.
TUSHAR RAO GEDELA, J.
OCTOBER 12, 2022/rk
Signature Not Verified
Digital Signed By:KUNAL
MAGGU
Signing Date:15.10.2022 11:49:53
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
