Delhi High Court
Union Of India & Anr vs Girbar Singh & Ors on 22 September, 2022
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 22.09.2022
+ W.P.(C) 1539/2016
UNION OF INDIA & ANR ..... Petitioners
versus
GIRBAR SINGH & ORS ..... Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. T.P.Singh, Senior Central Government Counsel.
For the Respondent: Mr. Wajeeh Shafia with Mr. Nimish Chib, Ms. Ramsha
Shan, Ms. Sabika Ahmad and Mr. Divve Chugh, Advocates.
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioner Union of India impugns order dated 12.05.2015
whereby the original application filed by the respondent has been
allowed and petitioner has been directed to consider the claim of the
respondents for financial upgradation in terms of the MACP Scheme,
2009 disregarding condition 10 of the MACP Scheme.
2. Respondents had filed the subject Original Application before
the Principal Bench of the Central Administrative Tribunal seeking
benefit of the service rendered in the parent cadre (State Government)
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while considering the eligibility and suitability for financial
upgradation in terms of MACP Scheme issued vide O.M No.
35034/3/2008-Estt. (D) dated 19.05.2009.
3. The only ground on which the petitioners denied benefit of
financial upgradation to the respondents with reference to their service
rendered in the parent organization, was in terms of clause 10 of
condition 4 of the MACP scheme which provided that past services
rendered by a permanent employee in State Government/Statutory
Body/Autonomous body/Public sector organization before
appointment in the Government shall not be counted as regular service
for the purposes of the scheme.
4. The Tribunal in the order dated 12.05.2019, impugned herein,
has noticed that a bench of the Tribunal at Jodhpur by order dated
13.04.2015 in O.A 279/2010 (Kishan Lal vs. UOI) struck down clause
10 of the MACP Scheme.
5. The Principal Bench of the Tribunal in the impugned order has
noticed that the Coordinate bench of the Tribunal at Jodhpur in Kishan
Lal (Supra) had relied upon another decision of the Tribunal at
Jodhpur dated 12.09.2006 in O.A 97/2004 in the case of D.K.Sharma
vs. Union of India & Ors.
6. The decision in D.K.Sharma (Supra) was upheld by the High
Court of Judicature for Rajasthan at Jodhpur by its order dated
05.04.2010 in CWP No.504/2008 and the Special Leave Petition
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against the said order [SLP No.15324/2010] was dismissed in limine
on 04.10.2010 by the Supreme Court.
7. The Principal Bench of the Tribunal in the order dated
12.05.2015, impugned herein, had referred to the decision of the
Supreme Court in S.I.Rooplal & Anr. vs. Lt. Governor through Chief
Secretary Delhi & Ors (2000(1) SCC 644) wherein the Supreme Court
has held that the bench of a Tribunal is bound by the view taken by a
coordinate bench of equal strength. Referring to the decision in
Rooplal (Supra) the Principal Bench of the Tribunal has held that it
found no reason to differ with the view taken in Kishan Lal's case.
8. It may further be noticed that the decision of the Rajasthan
bench of the Tribunal in Kishan Lal's case was impugned by the
Union of India (petitioner therein) before the High Court of Judicature
for Rajasthan at Jodhpur in D.B. Civil Writ Petition No.1830/2016.
Said writ petition was dismissed by the Division Bench of the
Rajasthan High Court by its order dated 24.08.2016 holding that no
ground had been urged before it to show that the case of Kishan Lal
was different from D.K.Sharma which had been relied on by the
Bench of the Tribunal.
9. It is an admitted position that the petitioners have not impugned
the decision of the Rajasthan High Court in Kishan Lal any further and
have accepted the judgment. It is also not in dispute that both Kishan
Lal and Dharmendra Kumar Sharma have been given the benefit
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which is sought to be denied to the respondents herein.
10. The Principal Bench of the Tribunal by the order impugned
herein has merely followed the decision in Kishan Lal whereby the
Central Administrative Tribunal, Jodhpur Bench has quashed clause
10 of the MACP Scheme.
11. Once a particular clause of a scheme is quashed and that
quashing is upheld by the High Court, said clause ceases to exist in the
scheme particularly when the Government has decided to accept the
decision of the High Court and implemented the same.
12. For all practical purposes clause 10 ceases to exist from the
MACP Scheme and as such the ground on which respondents have
been denied the benefit i.e. application of clause 10 is an erroneous
application of the said scheme.
13. The contention of learned counsel for the petitioner that the
order was implemented in Kishan Lal (Supra) only qua Kishan Lal is
not acceptable for the reason that there is no such direction either by
the Tribunal or by the Rajasthan High Court that the scheme has to be
implemented in the peculiar facts and circumstances of the case. On
the other hand in Kishan Lal's case the Tribunal has struck down
clause 10 of the scheme which has been upheld by the High Court and
such striking down has been accepted by the petitioners. Once the
petitioners in the case of Kishan Lal have accepted the striking down
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of the particular clause they cannot seek to implement said clause qua
other similarly situated employees.
14. Attempt was made by learned counsel for the petitioners to
distinguish the case of the respondents herein from the case of
D.K.Sharma (Supra).
15. We may at this stage notice that in the present writ petition
there is no attempt made to factually distinguish the case of the
respondents from the case of D.K.Sharma (Supra).
16. The only ground urged in the petition qua D.K.Sharma (Supra)
is ground D which reads as under:-
"D. That the Tribunal gave undue weightage to the
earlier judgement passed in the case of UOI & Ors V/s
D K Sharma and absorbed that the said order has
attained finality as the SLP filed by the UOI has been
dismissed. However, the fact is that the Hon'ble Apex
Court dismissed the said SLP without passing any
speaking order and as such it cannot be said with
precision that the issues has been settled by the
Hon'ble Apex Court conclusively."
17. Perusal of ground D clearly shows that petitioners have not
even attempted to distinguish the case of the respondents from that of
D.K.Sharma (Supra).
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18. It may also be noticed that the Division Bench of the Rajasthan
High Court while disposing of Kishan Lal's case also observed that no
attempt was made by the petitioner to distinguish the case of Kishan
Lal from that of D.K.Sharma.
19. Even otherwise as noticed hereinabove, since clause 10 has
already been quashed in Kishan Lal's case, petitioners cannot rely
upon the same to deny benefit to the respondents herein.
20. Learned counsel for the petitioners contends that being a policy
decision the Jodhpur bench erroneously quashed clause 10 of the
scheme.
21. We are unable to accept the contention of learned counsel for
the petitioners for the reason that the Tribunal in the order impugned
herein has not quashed clause 10 of the scheme but has only relied
upon a decision of the Jodhpur bench of the Tribunal which had
quashed clause 10 of the Scheme, the quashing of which was upheld
by the Division Bench of the High Court and that quashing was
accepted by the petitioners and the order was implemented.
22. So for all practical purposes, in the scheme that has been
applied today, there is no clause 10 existing which could be given
effect to for denying benefit to the respondents. As such we find no
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merit in the said contention also and reject the same.
23. In view of the above, we find no merit in the petition. The
petition is accordingly dismissed.
24. We observe that the Tribunal by the order impugned herein
dated 12.05.2015 had granted three months' time to the petitioners to
complete the exercise. Accordingly, we direct the petitioners to
complete the exercise as directed by order dated 12.05.2015 within a
period of three months from today.
SANJEEV SACHDEVA, J.
TUSHAR RAO GEDELA, J.
SEPTEMBER 22, 2022/rk
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Signing Date:28.09.2022 12:38:50
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