Delhi High Court
Sh. Prabhakar Rao Thanikonda & ... vs Export Inspection Council & Ors. on 7 November, 2023
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 02.11.2023
Judgment pronounced on: 07.11.2023
+ LPA 419/2023, CM APPL. 23412/2023 & CM APPL.
23413/2023
SH. PRABHAKAR RAO THANIKONDA & ORS ..... Appellants
versus
EXPORT INSPECTION COUNCIL & ORS .... Respondent
Advocates who appeared in this case:
For the Appellants : Mr. Parveen Kumar, Advocate
For the Respondent : Mr. L.R. Khatana, Advocate for R-1 to
R-4.
Mr. Neeraj, SPC with Mr. Vedansh and
Mr. Sahaj Garg, Advocates for UOI.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
TUSHAR RAO GEDELA, J.
1. This is an appeal under Clause X of Letters Patent Act, 1866
assailing the impugned order dated 05.04.2023 passed by the learned
Single Judge in W.P.(C) No.13777/2021 whereby the prayer seeking
grant of ACP/MACP at higher Grade Pay from earlier date on the
ground that the posts of Junior Scientific Assistant (hereinafter referred
to as 'JSA') and Technical Officer (hereinafter referred to as 'TO') were
merged, was rejected.
Signature Not Verified
Digitally Signed
Signing Date:07.11.2023
12:45:12
2. The prayers as sought by the appellants in their writ petitions
before the learned Single Judge are as under:-
"a) quash the impugned decision dt. 25.05.2021
[ANNEXURE P-1];
b) grant ACP in GRADE PAY 5400 PB-3,
CORRESPONDING PAY BAND 15600-39100 w.e.f.
01.01.2006 to all Petitioners;
c) grant 2nd MACP w.e.f. 01.09.2008 in GRADE PAY 6600
IN PB-3, CORRESSPONDING PAY BAND 15600-39100, on
01.09.2008, applicability date of MACP, to Petitioner no. 2
and 3 on account of serving more than required 20 years in
direct entry grade of 4200;
d) grant 2nd MACP w.e.f. 12.12.2008 in GRADE PAY 6600
IN PB-3, CORRESSPONDING PAY BAND 15600-39100 to
Petitioner no. 1 on account completing 20 years on
12.12.2018 in direct entry grade of 4200;
e) grant 2nd MACP w.e.f. 05.12.2009 in GRADE PAY 6600
IN PB-3, CORRESSPONDING PAY BAND 15600-39100 to
Petitioner no. 4 on account completing 20 years on
05.12.2019 in direct entry grade of 4200;
f) grant Petitioner no. 2 & 3, 3rd MACP in GRADE PAY
7600 IN PB-3, CORRESSPONDING PAY BAND 15600-
39100 on 07.10.2015/31.10.2015 on completion of 30 years
against the required 30 years to be counted from the direct
entry grade of 4200;
g) Grant Petitioner no. l, 3rd MACP in GRADE PAY 7600 IN
PB-3, CORRESSPONDING PAY BAND 15600-39100,
LEVEL-12 on l2.12.2018 on completion of 30 years against
the required 30 years to be counted from the direct entry
grade of 4200.
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Signing Date:07.11.2023
12:45:12
h) to recalculate all service/retirements benefits considering
the ACP and MACP entitlement as prayed hereinabove;
i) grant 12 % interest on the payable benefit from the payable
date;
j) grant exemplary cost of litigation against each respondents
and in favour of the each petitioners, for their malafide and
forcing the petitioners in unwarranted litigation;
k) pass any such further or other order(s) as this Hon'ble
Court may deem fit and proper in the facts and
circumstances of the case."
3. The facts as noted by the learned Single Judge in the impugned
order, shorn of all unnecessary details and germane to the dispute, are as
under:-
"(a) For development of export trade through Quality Control
and Inspection and for matters connected thereto, the Export
(Quality Control and Inspection) Act, 1963 (hereinafter
referred to as '1963 Act') was enacted and under Section 3 of
the said Act, EIC was set up as a Body Corporate. Under
Section 7 of the 1963 Act, in order to provide the ground
machinery for quality control and inspection, Central
Government established five Export Inspection Agencies
(hereinafter referred to as 'EIAs') in Delhi, Mumbai, Kochi,
Kolkata and Chennai, which function under the administrative
control of the EIC.
(b) Petitioners were appointed in the EIAs on different dates as
JSAs in the pay scale of Rs.1400-2600 (under 4th CPC) and the
relevant details are as follows:-
S. Name Date of Corresponding Corresponding
N. (2) joining and 5th Pay Pay Band and
(1) post Commission Grade as per 6th
(Group)(3) (4) Pay
Commission(5)
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1 PRABHAKARA 12.12.1998 5000-8000 9300-34800
RAO J.S.A. I PB-2 GP:4200
THANIKONDA
2 PRAKASH 07.10.1985 5000-8000 9300-34800
KUMAR J.S.A. I PB-2 GP:4200
3 RAM KUMAR 31.10.1985 5000-8000 9300-34800
GUPTA J.S.A. I PB-2 GP:4200
4 MS. UJJWALA 05.12.1989 5000-8000 9300-34800
KR. WADKE J.S.A. I PB-2 GP:4200
(c) Petitioners No.1 and 2 were placed in the revised pay scale
of Rs.5000-8000 under the 5th CPC, by order dated 03.03.1998
w.e.f. 01.01.1996, while Petitioner No.3 was granted the benefit
vide order dated 01.10.1997 and Petitioner No.4 vide order
dated 01.01.1996.
(d) Government of India, vide DoPT O.M. dated 09.08.1999
notified the Assured Career Progression Scheme ('ACP') for
Central Government Civilian employees in all
Ministries/Departments. ACP Scheme provides two financial
upgradations, on completion of 12 and 24 years' service, in the
Grade Pay in the next promotional hierarchy, subject to
fulfillment of requisite norms including benchmarks for
promotion to the said posts. First financial upgradation was
granted to the Petitioners under the ACP Scheme as follows :
S. Name Date of Pay Scale as Corresponding
N. (2) ACP/w.e.f. per 5th Pay Pay Band and
(1) (3) Commission Grade as per 6th
(4) Pay
Commission(5)
1 PRABHAKARA 01.04.2004 5500-175- 9300-34800
RAO /01.12.2000 9000 PB-2 GP4200
THANIKONDA
2 PRAKASH 17.10.2003/ 5500-175- 9300-34800
KUMAR 09.08.1999 9000 PB-2 GP4200
3 RAM KUMAR 17.11.2003/ 5500-175- 9300-34800
GUPTA 09.08.1999 9000 PB-2 GP4200
4 MS. UJJWALA KR. 01.04.2004 5500-175- 9300-34800
WADKE 9000 PB-2 GP4200
Signature Not Verified
Digitally Signed
Signing Date:07.11.2023
12:45:12
(e) Petitioners were thereafter promoted as TOs from the
following dates in the pay scale of Rs. 5500-9000, which was
the same scale as granted to them by way of first financial
upgradation under the ACP Scheme :-
S. Name Date of Pay Scale as Corresponding
N. (2) Promotion to per 5th Pay Pay Band and
(1) post of Commission Grade as per
Technical (4) 6th Pay
Officer / Commission(5)
Years for
Promotion
1 PRABHAKARA 30.10.2002 5500-175- 9300-34800
RAO (B)/13 Years 9000 PB-2 GP4200
THANIKONDA
2 PRAKASH 11.11.2002 5500-175- 9300-34800
KUMAR (B)/17 Years 9000 PB-2 GP4200
3 RAM KUMAR 01.11.2002 5500-9000 9300-34800
GUPTA (B)/17 Years PB-2 GP4200
4 MS. UJJWALA KR. 13.11.2002 5500-9000 9300-34800
WADKE (B)/12 Years PB-2 GP4200
(f) Petitioners No. 1 to 4 were promoted to the post of Assistant
Director (AD) from the post of TO and placed in the pre-revised
scale Rs.8000-13500 (revised Pay Band Rs.15600- 39100 with
Grade Pay Rs.5400/-) as under:-
S. Name Date of 2nd Pay Scale as Corresponding
N. (2) Promotion to per 5th Pay Pay Band and
(1) Asstt. Director Commission Grade as per
/ Total Service (4) 6th Pay
(3) Commission(5)
1 PRABHAKARA 04.03.2008/ 8000-13500 15600-39100
RAO 19years PB-3 GP-5400
THANIKONDA
2 PRAKASH 05.03.2010/ 8000-13500 15600-39100
KUMAR 24 years 7 m PB-3 GP-5400
3 RAM KUMAR 07.01.2008 8000-13500 15600-39100
GUPTA /22 years PB-3 GP-5400
4 MS. UJJWALA 24.03.2008 8000-13500 15600-39100
KR. WADKE 18 years PB-3 GP-5400
Signature Not Verified
Digitally Signed
Signing Date:07.11.2023
12:45:12
(g) DoPT notified the Modified Assured Career Progression
Scheme ('MACP Scheme') vide O.M. dated 19.05.2009 effective
from 01.09.2008, under which an employee is entitled to three
financial upgradations on completion of 10, 20 and 30 years
service, respectively.
(h) As per 6th CPC recommendations, posts in the pay scales
Rs.5000-8000 and Rs.5500-9000 were to be merged with the
post in pay scale Rs.6500-10500 (revised PB-2 with Grade Pay
of Rs.4200/-). The hierarchy of posts in EIAs is JSA in pay scale
of Rs.5000-8000 and TO in pay scale of Rs.5500-9000 and thus
by virtue of para 5 of Annexure-I of MACP Scheme read with
Clarificatory O.M. dated 09.09.2010 as well as Serial No.27(iii)
of FAQ on MACP in DoPT O.M. dated 01.04.2011,
promotion/upgradations in the pay scale of Rs.5500-9000 in the
past have to be ignored for purpose of granting financial
upgradations under the MACP Scheme. However, EIC did not
act in consonance with these O.Ms, leading to grant of financial
upgradations in lower Grade Pay. As an illustration, Petitioner
No.1 was granted pay scale of Rs.5500-9000 under 1st ACP on
12.12.2000 on completion of 12 years of service and was
promoted as TO in the same pay scale on 01.11.2002. On
account of merger of the pay scales Rs.5000-8000 and Rs.5500-
9000 into Rs.6500-10500, Petitioner No. 1 is to be treated as
having been placed in PB-2 with Grade Pay of Rs.4200/- and
was, therefore, entitled for pay fixation in PB-3 with Grade Pay
of Rs.5400/-, on completion of 18 years of service till his
promotion on 04.03.2008 and thereafter in Grade Pay of
Rs.6600/-, on completion of 20 years of service from the initial
date of appointment, which has not been done.
(i) Aggrieved by non-implementation of ACP/MACP Schemes in
accordance with the provisions thereof, Petitioner No. 1 made
representations dated 16.06.2010, 10.01.2013, 29.09.2018,
however, the grievance was not redressed, compelling the
Petitioners to approach this Court."
4. Mr. Parveen Kumar, learned counsel appearing on behalf of
appellants submitted that the impugned judgement dated 05.04.2023
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12:45:12
passed by the learned Single Judge as well as the decision dated
25.05.2021 rendered by the respondent is wholly unsustainable in law
and on facts. According to Mr. Kumar, the Appellant nos. 1 to 4 are
eligible for 1st ACP in the Grade Pay of Rs.5400/- in PB-3 on
completion of 12 years, which was granted on completion of 16-20
years. Appellant No. 1 is eligible for 2nd MACP in Grade Pay of
Rs.6600/- in PB-3 on completion of 20 years of service on 12.12.2008.
Appellant Nos. 2 and 3 are eligible for 2nd MACP in Grade Pay of
Rs.6600/- in PB-3 on completion of 20 years counted from direct entry
Grade as on 01.09.2008, whereas they were granted the benefit on
completion of 22 years. Appellant Nos. 2 and 3 are eligible for 3rd
MACP in Grade Pay of Rs.7600/- in PB-3 on 07.10.2015/31.10.2015 on
completion of 30 years from the dates of their respective appointments
in the direct entry Grade. Appellant No. 4 is eligible for 2nd MACP in
Grade Pay of Rs. 6600/- in PB-3 on 05.12.2009, on completion of 20
years from the date of appointment.
5. It was submitted on behalf of the appellants that law on grant of
benefits under the ACP and MACP Schemes is now settled by the
Supreme Court in Union of India and Others v. M.V. Mohanan Nair,
reported in (2020) 5 SCC 421 and Union of India v. R.K. Sharma and
Others, reported in (2021) 5 SCC 579 wherein it is held that ACP is to
be granted in the next Grade Pay in promotional hierarchy on
completion of 12 and 24 years in the same Grade Pay and MACP is
applicable from 01.09.2008 on completion of 10/20/30 years counted
from direct entry Grade in the next Grade Pay on completion of 10 years
continuously in the same Grade Pay. Learned counsel submits that the
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appellants have not been upgraded in accordance with the Schemes and
have suffered a huge monetary loss on this count, which will or has
ultimately translated in reduction in their retiral benefits also.
6. That, apart from the aforesaid, Mr. Kumar, learned counsel also
invites attention of this Court to the MACP Scheme and the conditions
under which the same would be applicable. The aforesaid arguments of
Mr. Kumar are more or less similar to the ones raised before the learned
Single Judge.
7. Per contra, Mr. L.R. Khatana, learned counsel appearing for the
respondent Nos.1 to 4 submitted that all benefits of financial
upgradation due to the Appellants under ACP/MACP Schemes have
been granted to the Appellants and they have no cause for grievance. He
further submits that the Appellant Nos. 2 and 3 have been compulsorily
retired from service under FR 56(j) while Appellant No. 4 has taken
voluntary retirement.
8. Learned counsel submits that none of them made any
representation to Respondent Nos. 1 to 4 and had directly approached
this Court by way of the writ petition, and it was only the Appellant No.
1 who had submitted representations, which were rejected by the
impugned order as his claim was misconceived.
9. It was contended by Mr. Khatana that the Appellants claim
ACP/MACP benefits on a misplaced ground of merger of the post of
JSA and TO premised on the recommendations of the 6th CPC, whereas,
in fact in the EIC and EIAs, these posts have neither been merged nor
upgraded, which is clearly reflected from the existing Recruitment
Rules. Drawing the attention of the Court to a tabular representation
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filed by Respondent Nos. 1 to 4, it was urged that all the Appellants
were granted 1st ACP on completion of 12 years of service from their
initial dates of appointments. Subsequently, they were promoted as TOs
in pay scale Rs.5500-9000, which was the same scale in which 1st ACP
financial upgradation was granted. He further submits that thereafter,
appellants were promoted to the post of Assistant Director (hereinafter
referred to as 'AD') in the pay scale Rs.8000-13500, revised to PB-3
with Grade Pay of Rs.5400/- under 6th CPC and placed in Level-10
under 7th CPC.
10. Learned counsel argued that since the Appellants have received
benefits of 1st financial upgradation under ACP and thereafter promotion
to the post of AD ignoring the promotion to the post of TO, which was
in the same scale as 1st ACP, the appellants were granted 3rd MACP on
completion of 30 years from the entry Grade and no infirmity can be
found with the action of the answering respondents.
11. That apart, Mr. Khatana pertinently referred to Clause VIII of the
conditions of MACP Scheme to the O.M. dated 19.05.2009 issued by
the DOPT to submit that according to the said clause, the promotions
earned in the same Grade Pay in the promotional hierarchy as per the
Recruitment Rules shall be counted for the purposes of MACP Scheme.
12. He also stressed on the fact that the respondent No.1 is an
Autonomous Body established under Section 3 of the Export (Quality
Control and Inspection) Act, 1963 having its rules, regulations and
Recruitment Rules unlike the Central or State Government authority.
Learned counsel submits that being an autonomous organization, it was
open to the respondents to adopt or not adopt the 6th CPC
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recommendations, including the merger of posts. In support of the said
contention, Mr. Khatana, learned counsel drew our attention to para 3 of
the counter affidavit.
13. According to Mr. Khatana, the 1st financial upgradation in the
next higher pay scale of the post of TO under the ACP Scheme was
granted to the appellants after 12 years of their services as JSA. Since
the appellants were thereafter promoted as TO and were already drawing
the financial upgraded pay scale of TO, no financial upgradation at the
time of promotion were needed to be granted. The subsequent
promotion to the post of AD and the stagnation at such post earned the
appellants the 3rd MACP financial upgradation after 30 years of service.
On that basis, he submits that the appellants are not entitled to the 2nd
financial upgradation under the MACP Scheme and their pay fixation
was correctly carried out. He prays that the present appeal be dismissed.
ANALYSIS AND CONCLUSION:
14. We have considered the rival submissions of the parties and have
also given our anxious considerations to the ACP/MACP Scheme and
other relevant documents placed on record. We have also carefully
perused the detailed judgment passed by the learned Single Judge
assailed in the present appeal.
15. In order to appreciate the facts arising in the present case and the
submissions based thereon, it would be appropriate to extract Para 20 of
the impugned order which is as under:
"20. For the sake of completeness and better clarity, I may
refer to a tabular statement, filed by Respondents No.1 to 4
along with the counter affidavit, demonstrating the promotions
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and financial benefits under the ACP/MACP Schemes, granted
to the Petitioners from time to time, as follows :-
PRABHAKAR RAO (Petitioner No.1)
Dates Particulars
12-12- Joined as JSA at Pilot Test House, Mumbai in the pay scale
of Rs. 1400-40-1600-50-2300-EB-60-2600/-
03-03- Consequent upon implementation of 5th CPC, pay scale
was revised to Rs. 5000-150-8000 and pay fixed at Rs.5300
w.e.f. 01-01-1996.
12-12- First ACP granted in the Pay scale of Rs. 5500-175-9000,
pay fixed at Rs. 6375 w.e.f. 12-12-2000 as per Office Order
dated 05-01-2004.
01-11- Promoted to the post of Technical Officer in the pay scale
of Rs.5500-175-9000/- and pay fixed at Rs. 6550/- per
month w.e.f. 01-11-2002.
04.03.200 Promoted to the post of Assistant Director in pay scale of
Rs. 8000-275-13500 vide EIC order dated 29-02-2008 and
pay fixed at Rs. 8000/-.
22-10- Consequent on the recommendation of the 6th CPC, vide
EIC O.M. dated 22-10-2008, his pay has been fixed in the
Pay Band PB3 Rs. 15600-39100+GP Rs. 5400 w.e.f. 04-
03-2008.
01-09- On implementation of 7th CPC, Pay fixed at Rs.67000/- in
Level 10 w.e.f. 01-01-2016
04-03- 3rd MACP granted in Level 11 (Pay Scale 67700-208700 as
per 7th CPC) w.e.f. 04-03-2018 vide order dated 06-04-
2022.
04-05- Promoted to the post of Deputy Director in the Pay Matrix
Level 11 (Rs. 67700-208700) w.e.f. 04-05-2022 vide order
dated 07-04-2022
PRAKASH KUMAR (Petitioner No.2)
Dates Particulars
07-10-1985 Joined as JSA at EIA-Mumbai in the pay scale of Rs.
1400-40-1600-50-2300-EB-60-2600/-
03-03-1998 Consequent upon implementation of 5th CPC, pay scale
revised to Rs. 5000-150-8000 and pay fixed at Rs.5750
w.e.f. 01-01-1996.
09-08-1999 1st ACP was granted in the Pay Scale of Rs. 5500-9000
and pay was fixed at Rs. 6375/-
Signature Not Verified
Digitally Signed
Signing Date:07.11.2023
12:45:12
11-11-2002 Promoted to the post of Technical Officer, in the pay
scale of Rs.5500-175-9000/- and pay fixed at Rs. 7075/-
01-07-2007 Pay fixed in PB-2 Rs.9300-34800+ GP 4200 at
Rs.14570+ GP 4200/- as per 6th CPC
05-03-2010 Promoted to the post of Assistant Director in PB3 Rs.
15600-39100 + GP 5400 vide EIC order dated 26-02-
2010 and pay fixed at Rs. 21860/- w.e.f. 08-03-2010
07-10-2015 3rd MACP granted in PB3 Rs.15600-39100 with Grade
Pay of Rs.6600/-
01-09-2017 On implementation of 7th CPC, Pay has been fixed in
Level 10 w.e.f. 01-01-2016
15.02.2018 Compulsory retired from his services as per the order no.
EUC/D(Q/C)148/FR56(J)/A/2017-18/5310 dated
15.02.2018
RAM KUMAR GUPTA (Petitioner No.3)
Dates Particulars
31.10.1985 Joined as JSA on 31 Oct 1985 at EIA-Mumbai in the pay
scale of Rs. 425-15-500-EB-15-560-20-700-EB-20-800
01.10.1986 Consequent upon implementation of 4th CPC, pay scale
revised to Rs. 1400-40-1600-50-2300-EB-60-2600 and
Pay fixed at Rs.1400 w.e.f. 01-01-1986.
01.10.1997 Consequent upon implementation of 5th CPC, pay scale
revised to Rs. 5000-1500-8000 and Pay fixed at Rs.5750/-
w.e.f. 01-01-1996.
01.11.2002 Promoted to the post of Technical Officer, in the pay
scale of Rs.5500-175-9000/- and pay fixed at Rs. 7075/-
per month w.e.f. 01-11-2002.
05.01.2004 First ACP granted in the Pay scale of Rs. 5500-175-9000,
pay fixed at Rs.6550/- w.e.f. 01-10-1999 as per office
order dated 05-01-2004.
02.01.2008 Promoted to the post of Assistant Director in pay scale of
Rs. 8000-275-13500 vide EIC order dated 2-01-2008 and
pay fixed at Rs. 8275/- w.e.f. 07-01-2008.
01.07.2008 Consequent on the recommendation of the 6th pay
commission, vide EIC O.M. dated 22-10-2008, his pay
was fixed at Rs. 21870/- in the Pay Band PB3 Rs. 15600-
39100+GP Rs. 5400 w.e.f. 01-07-2008.
26.12.2016 3rd MACP granted in the Pay Band PB3 Rs. 15600-39100
+ GP Rs 6600/-, pay fixed at Rs. 29810/- w.e.f. 01-07-
27.07.2017 Consequent on the recommendation of the 7th pay
commission, vide EIC O.M. dated 27-07-2017, pay fixed
at Rs. 76200/- in the Pay Level 11 w.e.f. 01-01-2016.
Signature Not Verified
Digitally Signed
Signing Date:07.11.2023
12:45:12
31.07.2018 Retired under Rule 56 (j) on 31st July 2018
UJJWALA WADKE (Petitioner No.4)
Dates Particulars
05-12-1989 Smt. Ujwala K Wadke, JSA was appointed in the post of
JSA Pay Scale Rs. 1400-40-1600-50-2300-EB-60-2600-
(PB Rs. 1400/- at Pilot Test House-Mumbai vide
Appointment letter dated 08-11-1989
01.1.1996 Consequent upon implementation of 5th Pay Commission
the scale of pay has been revised to Rs. 5000-150-8000
and pay was fixed at Rs.5300/- w.e.f. 01-01-1996.
05-12-2001 First ACP granted in the Pay scale of Rs. 5500-175-9000,
pay fixed at Rs.6375.
13-11-2002 Appointed on promotion to the post of Technical Officer
in Pay Scale Rs. 5500-175-9000/- and pay fixed at
Rs.6375/-
29-02-2008 Promoted to the post of Assistant Director in pay scale of
Rs. 8000-275-13500/-
22-12-2008 Consequent on the acceptance of 6th Pay commission, the
scale has been revised in Pay Band PB-3 Rs. 15600-
39100 + GP Rs. 5400 w.e.f. 01-01-2006 as per EIC order
dated 22-12-2008.
01-09-2017 On implementation of 7th CPC, Pay fixed at Level 10, Rs.
67000/- w.e.f. 01-01-2016
03-07-2018 Voluntary Retired from service as Assistant Director (T).
Although the learned counsel for the appellants had raised some
objections on the aforesaid table, yet had not addressed any argument or
produced any counter document to effectively dispute the facts
contained therein. We have carefully perused the relevant dates on
which each of the appellants were initially appointed, the dates of their
respective promotions, and the relevant dates when they were granted
benefit of ACP and MACP Scheme as and when the same fell due and
in terms of their eligibility.
16. On a judicial examination of the aforesaid, we find that
admittedly, the appellants had indeed been granted 1st financial
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upgradation under the ACP Scheme after the lapse of 12 years in
accordance with the conditions therein. The appellants have no quarrel
in respect of such financial upgradation.
17. The appellants are aggrieved about non-grant of 2nd financial
upgradation under the MACP Scheme on the ground that despite being
eligible, the appellants were denied the 2nd financial upgradation under
the MACPS even after the passage of 20 years of regular service. This
grievance was predicated on the basis that the promotion from JSA to
TO, so far as the MACPS is concerned, shall not render them ineligible
for the 2nd financial upgradation as the promotions shall not be taken
into consideration, by referring to Question 27(iii) of the FAQs on the
MACP Scheme.
18. It would be relevant to extract Question 27 (iii) of the FAQs
hereunder:
"Department of Personnel & Training
Establishment D Section
Frequently Asked Questions (FAQs) on Modified Assured Career Progression
Scheme (MACPS)
SI.No Doubts Clarification
27 In a hypothetical situation In terms of clarification given
cadre hierarchy was as on point of doubt no.3 issued
follows: vide DOPT's O.M. No.
Rs. 5000-8000 (revised GP 35034/3/2008-Estt.(D) dated
4200) 9.9.2010, the benefits of ACPS
Rs. 5500-9000 (revised GP would be applicable in the new
4200) pay structure adopted w.e.f.
Rs. 6500-10500 (revised GP 1.1.2006 in the promotional
4600) hierarchy.
Rs. 7450-11500 (revised GP
4600)
Rs. 10000-15200 (revised GP
6600)
(i) xxx (i) xxx
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(ii) xxx (ii) xxx
(iii) If a Government servant (iii): The pre-revised pay
recruited in the pre-revised scales Rs. 5000-8000 & Rs.
pay scale of Rs. 5000-8000 5500-9000 have been merged
has been promoted in the and placed in PB-2 with grade
promotional hierarchy in the pays of Rs. 4200 w.e.f.
pre-revised pay scale of Rs. 1.1.2006. Hence, the
5500-9000 prior to 1.1.2006 promotion would be ignored as
(and he has put in 14 years of he has completed his 12 years
regular service) then would of regular service and the
there be any claims for benefit of 1st ACP would
financial upgradation under accordingly be allowed in the
ACPS* promotional hierarchy i.e. in
the grade pay of Rs. 4600 w.e.f.
01.01.2006.
*Bold portion as contained in the original document.
The aforesaid argument is fallacious to say the least for the reason
that the 1st financial upgradation to the pay scale of TO was indeed
granted under the ACP Scheme at the time when the appellants were
holding the post of JSA. Subsequently, when they were actually
promoted to the post of TO, no financial upgradation could be given
since they were already enjoying the pay scale of TO. As such, the
argument on the basis of Question 27 (iii) of FAQs of MACPS for
seeking entitlement to 2nd financial upgradation under MACPS is
unsustainable.
19. Moreover, the appellants were promoted as AD subsequently and
had stagnated at such post for the next 10 years completing their
eligibility of 30 years for the purposes of 3rd financial upgradation under
the MACP Scheme. As such, the 3rd financial upgradation under the
MACPS also has been correctly granted to the appellants.
20. So far as the submission regarding non-grant of 2nd financial
upgradation under the MACPS is concerned, the appellants obviously
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cannot be eligible for the same since they had indeed earned a
promotion at the relevant time, which according to the conditions of
MACPS, made them ineligible. This would be further clear from the
observations recorded by the learned Single Judge in Para 21 of the
impugned order. The same is extracted hereunder:
"21. Having carefully perused the aforesaid statements,
this Court does not find any anomaly in grant of financial
upgradations to the Petitioners under ACP/MACP
Schemes. Illustratively, the case of Petitioner No.1/Shri
Prabhakara Rao Thanikonda can be examined in order to
test the respective stands of the rival parties. Petitioner
No.1 joined as JSA on 12.12.1988 in pay scale Rs.1400-
2600. The pay scale was revised to Rs.5000-8000 w.e.f.
01.01.1996 under 5th CPC. First ACP upgradation was
granted in the scale of Rs.5500-9000 w.e.f. 12.12.2000 on
completion of 12 years regular service counted from
12.12.1988. He was promoted to the post of TO on
01.11.2002 and since the post carried the pay scale of
Rs.5500-9000, there was no change in the pay scale.
Petitioner No.1 was promoted to the next post of AD in
the hierarchy w.e.f. 04.03.2008 in the scale of Rs.8000-
13500, which was revised to PB-3 (Rs.15600-39100) with
Grade Pay of Rs.5400/- w.e.f. 04.03.2008 and finally
fixed in Level-10 under 7th CPC w.e.f. 01.01.2016. Since
the posts of JSA and TO were never merged by
Respondents No.1 to 4, promotion to the post of AD was
counted in the hierarchy of promotions and therefore,
Petitioner No.1 was not entitled to 2nd MACP on
completion of 20 years on 12.12.2008 and was granted
3rd MACP on completion of 30 years in 2018. On the
same analogy, benefits as due to the other Petitioners
have been correctly granted. Action of Respondents No. 1
to 4 is in consonance with the provisions of ACP/MACP
Schemes and cannot be faulted."
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21. The reliance of Mr. Kumar on the judgments of M.V. Mohanan
Nair (supra) and R.K. Sharma and Others (supra) passed by the
Hon'ble Supreme Court does not assist the case of the appellants any
further. In that, the said judgments lay down the ratio that so far as
MACP Scheme is concerned, the entitlement of financial upgradation is
limited to the next higher Grade Pay in the Pay Band and not the Grade
Pay in the next higher promotional hierarchy. Mr. Kumar has no quarrel
with the aforesaid proposition of law. The said proposition is not even a
subject matter in issue in the present case and as such, the said
judgments are not applicable.
22. Considering the above, we find no legal infirmity, illegality, both
on facts or law in the impugned order and as such, the present appeal
being devoid of all merits is dismissed, however, without any order as to
costs.
23. Pending applications also stand disposed of.
(TUSHAR RAO GEDELA)
JUDGE
(SATISH CHANDRA SHARMA)
CHIEF JUSTICE
NOVEMBER 07, 2023/rl
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