Gauhati High Court
WP(C)/1350/2023 on 14 October, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/20
GAHC010042902023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1350/2023
Dhrubajyoti Deb, S/O- Lt. Jyotirmoy Deb, ACS Cadre of
1995 Batch, presently serving as Additional Deputy
Commissioner, Dima Hasao, Haflong, R/O- Rahaman Patty,
Ward No. 04, H.No. 12, Steamerghat Road, Malugram,
P.O.- Silchar, District- Cachar, Assam, Pin- 781002.
..................Petitioner
-VERSUS-
1. The State of Assam to be represented by the
Commissioner and Secretary to the Government of
Assam, Personnel (A) Department, Assam Civil
Secretariat, Dispur, Guwahati-6.
2. The Secretary to the Government of Assam,
Personnel (A) Department, Assam Civil Secretariat
Dispur, Guwahati-6.
...................Respondents
Advocates :
Petitioner : Mr. B. Purkayastha, Advocate
Page No.# 2/20
Respondents : Mr. R. Dhar,
Additional Senior Government Advocate, Assam
Date of Judgment & Order : 14.10.2025
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER
By the present writ petition under Article 226 of the Constitution of India,
the writ petitioner has approached this Court for the second time after
approaching earlier by way of a writ petition, W.P.[C] no. 6010/2019, which was
disposed of by an Order dated 21.09.2022. By the Order dated 21.09.2022, the
writ petition, W.P.[C] no. 6010/2019 was disposed of with a direction to the
State respondents to consider the case of the petitioner for extending financial
benefit provisionally in terms of the Modified Assured Career Progression
Scheme [MACPS], framed and notified by a Notification dated 17.03.2017, and
an Office Memorandum dated 14.08.2018 on the subject : 'Time Scale of Assam
Civil Service Officers'. Subsequent to the direction made in the Order dated
21.09.2022 to pass an Order, the respondent no. 1 had passed an Order on
06.02.2023. Assailing the Order dated 06.02.2023, the petitioner has preferred
the present writ petition.
2. The petitioner is a member of the Assam Civil Service. The matters of
recruitment and conditions of service of the members belonging to the Assam
Civil Service are regulated and governed by the Assam Civil Services Rules,
1998, as amended. After his selection in a selection process undertaken by the
Assam Public Service Commission [APSC] for recruitment to the Assam Civil
Page No.# 3/20
Service [ACS], the petitioner came to be appointed in Class-I Junior Grade in the
ACS in its 1995 Batch by a Notification dated 12.06.1995. Prior to joining in the
Junior Grade in the ACS, the petitioner completed a Combined Induction Course
for the ACS and allied officers of the 1995 Batch. During his service career, the
petitioner served at different places on orders of posting and transfer. After
completion of 20 years of service in ACS Class-I Junior Grade, the petitioner was
promoted and allowed to officiate in Senior Grade-II of the ACS vide a
Notification dated 31.12.2015 and by the Notification dated 31.12.2015, the
petitioner was posted as Additional Deputy Commissioner, Karimganj.
3. During his service tenure, the petitioner was arraigned as accused in two
criminal cases. In a complaint case, C.R. 504/2015, the petitioner was arraigned
as one of the four accused. After trial, the Court of learned Additional Chief
Judicial Magistrate, Hailakandi as the Trial Court vide its Judgment and Order
dated 21.07.2018 acquitted the petitioner from the charges under Section 409
read with Section 34 of the Indian Penal Code [IPC], which was framed against
him. In the other case, Special Case no. 02/2017, the investigating authority,
CBI had submitted a Charge-Sheet on 15.09.2016 and in the said Charge-Sheet,
the petitioner was charge-sheeted as accused no. 6 [A-6]. The competent
authority in the Personnel Department, Government of Assam, by an Order
dated 12.01.2017, granted prosecution sanction to proceed against the
petitioner in the trial.
4. In the writ petition, W.P.[C] no. 6010/2019, the petitioner sought for a
direction to the respondent authorities to grant him the benefit of financial
upgradation in terms of the provisions of the MACPS.
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5. The scheme known as MACPS has been made applicable to the regular
State Government employees. The State Government in the Finance [Pay
Research Unit] Department had framed and notified the MACPS by a Notification
dated 17.03.2017, which was published in the Assam Gazette in its Issue no. 74
dated 17.03.2017. As per the MACPS, it would provide only financial upgradation
and was not to entail any change in designation, place and nature of work and
change in the seniority of the person concerned in the Gradation List. A salient
feature of the MACPS was grant of financial upgradation three times in the
entire service period viz. on completion of 10 years, 20 years and 30 years to
those employees who did not get one regular promotion within the first 10 years
or two regular promotions/Assured Career Progression Scheme [ACPS] benefit
within 20 years or three promotions/ACPS benefit within 30 years of regular
service. It was made specific that the MACPS would provide only one financial
upgradation and the financial upgradation would involve grant of only one
increment in the Pay Band [PB] of the employee without change of his Grade
Pay [GP]. In case any employee is drawing the highest amount of the Pay Band
[PB], he would be granted an increment and the Pay Band [PB] for this purpose
shall be deemed to have been extended to that extent.
6. The Court while adjudicating the issued involved in the writ petition, W.P.
[C] no. 6010/2019, examined few of the clauses in the MACPS, namely, Clause
5[B][vii], Clause 5[B][xiv] and Clause 5[C], which are also relevant here. The
Clauses read as under :-
5[B][vii] The financial benefit of the scheme shall be given with effect only from 1.1.2017.
However, the services rendered by the employee before 1.1.2017 and promotions/ACPS
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benefit availed before 1.1.2017 shall be taken into account for deciding and determining the
extent of benefit under MACPS. For example an employee who has joined regular service
in 1995 and his case has been considered in 2016, the service for the purpose of MACPS
shall be counted from 1995 and accordingly he will be entitled for one promotion in 2006
and another in 2016. The first benefit under MACPS will in this case start only from
1.1.2017 and not earlier.
5[B][xiv] Normally the benefits under MACPS shall be applicable from the 1st day of
January of the year in which the Screening Committee has held the meeting and
recommended the case. This would imply that any employee who has completed 10/20/30
years of service in the previous year shall get the benefit only from the 1 st January of the
year in which the Screening Committee meeting is held. However if there is a DP or
criminal proceeding against the employee, the benefit will be granted provisionally from the
same date as in normal case and subject to the condition as follows:- [a] If there is any
amount to be recovered as penalty, the recovery will be made as usual under existing rules
of the Government; [b] If stoppage of increment is ordered as penalty, the date of effect of
MACPS benefit will be delayed by the number of years equal to the number of stopped
increments and recovery for the excess drawn will be made as usual.
5[C] Procedure for grant of financial upgradation benefit-
[i] Every department shall have a Screening Committee with the senior-most Secretary or
any other Secretary authorized by the Senior-most Secretary as Chairman. The Head of
the Department under the control of that Secretary and Financial Advisor of the department
shall be the members of the Committee and the Deputy Secretary of the department shall
be the Member-Secretary of the Committee.
[ii] The Committee, in the month of January every year, will consider all the cases of
Government servants who have completed 10 years of service / 20 years of service / 30
years of service in the previous calendar year. The list of such Government servants will be
prepared by the HODs in the month of December of the previous year and submitted to the
Secretary for holding the meeting of the Screening Committee.
Page No.# 6/20
[iii] The Committee will verify the length of service as on 1st January of the year in which
the meeting is held and will verify if any DP/criminal case is contemplated or under process
against the Government servants under consideration. ACRs need not be considered for
deciding the MACP benefit.
[iv] All the cases where the government servants have completed 10/20/30 years of service
and have no DP or criminal case against them, shall be shortlisted for MACP benefit.
7. During the course of deliberation, an Office Memorandum dated 14.08.2018
of the State Government on the subject : 'Time Scale of Assam Civil Service
Officers' was also considered. In the Office Memorandum dated 14.08.2018, the
State Government formulated a scheme for providing pay and allowances of
next higher grade to a member belonging to the ACS in Junior Grade/Senior
Grade-II/Senior Grade-I/Selection Grade. As per the Office Memorandum dated
14.08.2018, a member of the ACS in Junior Grade was to be allowed the higher
grade pay of Senior Grade-II on completion of 6 years of continuous service. A
member in the ACS in Senior Grade-II was to be allowed higher grade pay of
Senior Grade-I on completion of 12 years of continuous service. Similarly, a
member belonging to the ACS in Senior Grade-I was to be allowed higher Grade
Pay of Selection Grade on completion of 19 years of continuous service. It was
further provided that the higher grade pay was to be allowed on the condition
that there had to be no departmental proceeding/criminal proceeding pending
against such member.
8. After hearing the parties and upon perusal of the materials on record
including the provisions of the MACPS, notified by the Notification dated
17.03.2017, and the Office Memorandum dated 14.08.2018 providing on the
subject : 'Time Scale of Assam Civil Service Officers', the Court disposed of the
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writ petition by the Order dated 21.09.2022. In the Order dated 21.09.2022, the
Court had observed as under :-
9. It has been asserted that during his service tenure after joining as a member of the
Assam Civil Services [ACS] in the year 1995, the petitioner has got one regular promotion
without any financial up-gradation under the MACPS. A stand has been taken by the State
respondents in its affidavit-in-opposition to the effect that the benefit of financial up-
gradation is subject to the condition that there shall not be any departmental proceeding or
criminal proceeding pending against the officer. As per the Office Memorandum dated
14.08.2018, Time Scale is to be granted to the ACS Officers. A member of the ACS is to be
granted the next higher Grade Pay subject to fulfillment of the other conditions mentioned
therein. One of the conditions is that the financial upgradation is subject to the condition
that there is no disciplinary or criminal proceeding against the officer. It has been averred
that since prosecution sanction was granted against the petitioner by the order dated
12.01.2017 by the Personnel Department, the petitioner has not been considered for
promotion to Senior Grade-I, as per Rule 13[3] of the 1998 Rules. It has been sought to
project that the petitioner has not been granted financial benefits of fixed time scale of
higher grade pay of ACS Senior Grade-I, as provided in the Office Memorandum dated
14.08.2018, because of the criminal proceeding pending against him.
10. A perusal of the provisions of the MACPS, more particularly, Clause 5[B] [xiv] goes to
indicate that any employee who has completed 10/20/30 years of service in the previous
year shall get the benefit only from 1st day of January of the year in which the Screening
Committee meeting has been held. In case any departmental proceeding or criminal
proceeding is pending against an employee, the financial benefit under the MACPS will be
granted provisionally from the date as in normal case and subject to the conditions : [a] if
there is any amount to be recovered as penalty, the recovery will be made as usual under
existing rules of the Government; [b] if stoppage of increment is ordered as penalty, the
date of effect of MACPS benefit will be delayed by the number of years equal to the
number of stopped increments and recovery for the excess drawn will be made as usual.
Page No.# 8/20
11. A perusal of the said clause goes to indicate that there has to be a prior order either for
recovery of any amount as penalty or stoppage of increment of the employee as penalty.
Prima facie, none of the said two conditions is found to be present in the case of the
petitioner and as such, the two conditions attached for grant of financial benefit under the
MACPS provisionally appear to be non-existent. On the admitted position that a criminal
proceeding is pending against the petitioner, it is not envisaged for stoppage of financial
benefit under the MACPS and such employee like the petitioner can be considered for grant
of financial benefit provisionally under the MACPS provisions.
12. The Office Memorandum dated 14.08.2018 has not dealt specifically on the grant of
financial benefit provisionally. It transpires from the Office Memorandum dated 14.08.2018
that it speaks about higher Grade Pay whereas the MACPS mentions about financial
upgradation which involves grant of one increment in the Pay Band without changing its
Grade Pay and in case any employee is drawing the highest amount of the Pay Band, he
would be granted an increment and the Pay Band for this purpose shall be deemed to have
been extended to that extent.
13. In the light of the above discussion, this Court is of the considered view that the case of
the petitioner may be considered for grant of financial benefit provisionally by the competent
authority by taking into consideration the provisions of the MACPS, more particularly,
Clause 5[B][xiv] and the Office Memorandum dated 14.08.2018 together. Accordingly, this
writ petition is disposed of with a direction to the State respondent authorities to consider
the case of the petitioner for extending the financial benefit provisionally in terms of the
MACPS and the Office Memorandum dated 14.08.2018 by taking into account that the
petitioner's more than 20 years of service in the ACS is without two regular promotions.
After such consideration, a speaking order be passed. It is ordered accordingly. It is further
observed that such speaking order is to be passed with a period of 2 [two] months from the
date of receipt of a certified copy of this order from the petitioner. The speaking order so
passed shall also be communicated to the petitioner.
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9. It was subsequent to the above direction, the impugned Order came to be
passed on 06.02.2023.
10. I have heard Mr. B. Purkayastha, learned counsel for the petitioner and Mr.
R. Dhar, learned Additional Senior Government Advocates, Assam for the State
respondents.
11. Mr. Purkayastha, learned counsel appearing for the petitioner has
submitted that there are distinctions between MACPS notified vide the
Notification dated 17.03.2017 and the Office Memorandum dated 14.08.2018 as
both operate differently. The prime distinction is that the Office Memorandum
dated 14.08.2018 had provided for pay and allowances of the next higher grade
whereas the MACPS had provided for grant of one increment in the Pay Band
[PB] of the employee without change in the Grade Pay [GP]. He has further
submitted that while pay and allowances of the next higher grade was not
permissible under the Office Memorandum dated 14.08.2018 in case any
disciplinary proceeding or criminal proceeding was pending against the officer,
the benefit under the MACPS could be extended provisionally to an officer even
in case of pendency of any disciplinary proceeding or criminal proceeding
subject to the conditions stipulated therein. He has further submitted that this
Court by taking note of such distinction had directed the State respondent
authorities to consider the case of the petitioner for extending the financial
benefit provisionally in terms of the MACPS and the Office Memorandum dated
14.08.2018 as the petitioner despite his more than two decades of service in the
ACS did not get two regular promotions. But, the observations made by the
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Court were totally ignored by the respondent no. 1 while passing the impugned
Order dated 06.02.2023. It is his contention that the respondent no. 1 did not
consider the aspect regarding extension of financial benefit under the MACPS
provisionally qua the conditions stipulated therein. In such view of the matter,
the impugned Order dated 06.02.2023 suffers from non-application of mind and
arbitrary in nature. He has contended that as the petitioner had completed 20
years of service in 2015 and was eligible to receive the benefit of the MACPS on
and from 01.01.2016 onwards, the petitioner has been treated with
discrimination.
12. Mr. Dhar, learned Additional Senior Government Advocate appearing for the
State respondents has submitted that as per the procedure for grant of financial
upgradation benefit provided in the MACPS, only the cases of the Government
servants who had completed 10/20/30 years of service and had no disciplinary
proceeding or criminal proceeding pending against them, were eligible to be
shortlisted for the benefit under the MACPS. Thus, there cannot be any question
for consideration of the case of the petitioner as there was a criminal
proceeding pending against the petitioner in the form of Special Case no.
02/2017. He has submitted that since the prosecution sanction was granted
against the petitioner on 12.01.2017 in Special Case no. 02/2017, the disposal
of the said proceeding was a pre-requisite for consideration of the case of the
petitioner for grant of financial benefit under the MACPS as well as the time
scale benefit as envisaged for ACS Officers in the Office Memorandum dated
14.08.2018.
13. This Court while disposing of the writ petition W.P.[C] no. 6010/2019 by
Page No.# 11/20
the Order dated 21.09.2022, directed the State respondents to consider the
case of the petitioner for the purpose of granting financial benefit provisionally
by taking into consideration the provisions of the MACPS, more particularly,
Clause 5[B][xiv] and the Office Memorandum dated 14.08.2018 together and
also by taking into consideration the petitioner's more than 20 years of service
in the ACS without two regular promotions.
14. As per the Office Memorandum dated 14.08.2018, a member of the ACS
was to be granted the next higher Grade Pay [GP] along with corresponding
allowances on promotion of requisite qualifying service with the then Grade Pay
[GP] as mentioned in the Table therein only if the officer had not been regularly
promoted during the periods of 6 years, 12 years and 19 years respectively.
Extension of such benefit was made subject to the condition that there should
not be any disciplinary proceeding or criminal proceeding against the officer.
The placement of the officer in the higher time scale of pay through financial
upgradation was to be purely on personal basis and would not amount to
functional or regular promotion and would not require creation of new post for
the purpose. On the other hand, MACPS had only contemplated financial
upgradation involving grant of only one increment in the Pay Band [PB] of the
employee without changing his Grade Pay [PB].
15. The case of the petitioner for financial upgradation under the MACPS was
denied by the impugned Order on the ground that there was a criminal
proceeding pending against the petitioner wherein prosecution sanction had
already been granted on 12.01.2017.
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16. In the MACPS notified by the Notification dated 17.03.2017, the procedure
for grant of financial benefit had been laid down in the following manner :-
[C] Procedure for grant of financial upgradation benefit -
[i] Every department shall have a Screening committee with the senior-most
Secretary or any other Secretary authorized by the senior-most Secretary as
Chairman. The Head of the Department under the control of that Secretary and
Financial Advisor of the Department shall be the members of the Committee and
the Deputy Secretary of the Department shall be the Member-Secretary of the
Committee.
[ii] The Committee, in the month of January every year, will consider all the cases
of Government servants who have completed 10 years of service/20 years of
service/30 years of service in the previous calendar year. The list of such
Government servants will be prepared by the HODs in the month of December of
the previous year and submitted to the Secretary for holding the meeting of the
Screening Committee.
[iii] The Committee will verify the length of service as on 1 st January of the year in
which the meeting is held and will verify if any DP/criminal case is contemplated or
under process against the Government servants under consideration. ACRs need
not be considered for deciding the MACP benefit.
[iv] All the cases where the government servants have completed 10/20/30 years of
service and have no DP or criminal case against them, shall be shortlisted for
MACP benefit.
[v] This list shall be submitted to the Minister In-Charge of the Department for
approval to issue necessary orders. The Department will issue orders granting the
benefit of financial upgradation with effect from 1st January of that year.
17. Though in Clause 5[C], extracted above, it was mentioned that the cases
of the Government servant who had no disciplinary proceeding or criminal
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proceeding against them would be shortlisted for the benefit under the MACPS,
Clause 5[B][iv], extracted above, would go to indicate that a Government
servant who had completed 10/20/30 years of service on the relevant date, can
be granted the benefit provisionally from the same date as in normal case. But,
such consideration for extending the benefit provisionally would be subject to
the two conditions, namely, [a] if there is any amount to be recovered as
penalty, the recovery would be made as usual under existing rules of the
Government; [b] if stoppage of increment has been ordered as penalty, the date
of effect of MACPS benefit would be delayed by the number of years equal to
the number of stopped increments and recovery for the excess drawn will be
made as usual.
18. If any disciplinary proceeding is to be initiated against a member belonging
to the ACS, then such disciplinary proceedings has to be initiated and completed
in strict conformity with the provisions of the Assam Service [Disciplinary and
Appeal] Rules, 1964 ['the Rules, 1964', for short]. Rule 7 of the Rules, 1964 has
provided for the nature of penalties which inter alia include withholding of
increments of promotion and recovery from pay of the whole or part of any
pecuniary loss caused to the State Government, etc. Admittedly, no disciplinary
proceeding has been initiated or pending against the petitioner as a member of
the ACS as on 01.01.2016 or the date of disposal of the writ petition, W.P.[C]
no. 6010/2019 on 21.09.2022 or passing of the impugned Order dated
06.02.2023. In such view of the matter, the twin conditions prescribed for
consideration of the case of the petitioner for grant of financial benefit
provisionally under the MACPS on the ground of pendency of disciplinary
proceeding are found to be absent. The question, therefore, arises is whether
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the twin conditions for not considering a case for grant of the financial benefit
provisionally under the MACPS can be made applicable in connection with any
criminal proceeding pending against a Government employee.
19. The case, Special Case no. 02/2017 arose out of a First Information Report
[FIR] lodged on 15.10.2014. The main allegation in the FIR was inter alia
regarding fraudulent payment of Surface Damage Compensation during the year
: 2013-2014 to fictitious beneficiaries, who allegedly did not possess any land in
the affected areas in connection with the stringing works of Transmission Line of
Power Grid Corporation of India Limited [PGCIL] by the accused PGCIL officers
in criminal conspiracy entered with the officers of the Revenue Administration of
Land Settlement, thereby, causing wrongful loss to the PGCIL and corresponding
resulting in wrongful gain to the accused. The Charge-Sheet was submitted
finding a prima facie case for commission of the offences under Sections 120B,
420, 468 and 471 of the IPC read with Section 13[2] r/w 13[1] of the
Prevention of Corruption Act, 1988 ['the PC Act']. As per the materials on
record, the trial of Special Case no. 02/2017 is pending before the Court of
learned Special Judge, CBI at Guwahati as on date at the stage of examination
of prosecution witnesses. In a criminal proceeding involving the aforesaid
offences, the charge-sheeted accused persons who are facing the trial can be, if
found guilty, imposed with the sentence of imprisonment and/or fine as
provided by the IPC or the PC Act. Apparently, the criminal proceedings would
not entitle the Special Court to recover any amount from the convicted person
as penalty nor it can order stoppage of increment as penalty. A person convicted
in a criminal proceeding is not likely to suffer any penalty of recovery of any
amount or a penalty in the form of stoppage of increment in such criminal
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proceeding.
20. The observations made by this Court with regard to the distinctions
between the MACP Scheme notified by the Notification dated 17.03.2017 and
the grant of time scale of pay to ACS officers in terms of the Office
Memorandum dated 14.08.2018 was quoted in the Order dated 21.09.2022.
There was inter alia a specific direction to consider the case of the petitioner for
grant of financial benefit provisionally by taking into consideration the provisions
of the MACPS, more particularly, Clause 5[B][xiv]. But, there is no reflection in
the impugned Order dated 06.02.2023 about consideration of the case of the
petitioner qua Clause 5[B][xiv] which goes to indicate that the respondent no. 1
while considering the case of the petitioner did not consider Clause 5[B][xiv].
21. When Clause 5[B][xiv] and Clause 5[C][iv] along with other clauses in the
MACPS are read together, there appears, at first blush, to be an contrariety
between Clause 5[B][xiv] and Clause 5[C][iv] for consideration of the case of
the petitioner as the petitioner was found to be facing criminal prosecution.
When given a close look, it is noticed that the financial benefit of the MACPS
was to be given with effect only from 01.01.2017. However, to extend the
financial benefit, the services rendered by the employee before 01.01.2017 and
promotions/ACPS benefit availed before 01.01.2017 were to be taken into
account for deciding and determining the extent of benefit under the MACPS. An
example was also given in the Notification dated 17.03.2017 by providing that
an employee who had joined regular service in 1995 and his case had been
considered in 2016, the service for the purpose of MACPS shall be counted from
1995 and accordingly, he would be entitled for one promotion in 2006 and
Page No.# 16/20
another in 2016. The financial benefit under the MACPS would then in the case
start only from 01.01.2017 and not earlier. As per Clause 5[B][iv], if an
employee has a service life of 20 [twenty] years from the date of joining and
during these service life of 20 [twenty] years, the employee had got one
promotion or one ACPS benefit then the employee would be entitled to receive
one increment under the MACPS. As per Clause 5[B][xiv], the benefits under the
MACPS shall be normally applicable from the 1 st day of January of the year in
which the Screening Committee had held the meeting and recommended the
case. It implied that any employee who had completed 10/20/30 years of
service in the previous year shall get the benefit only from the 1 st January of the
year in which the Screening Committee meeting was held. Clause 5[C][ii] and
Clause 5[C][iii] had provided that the Screening Committee, in the month of
January, would consider all the cases of Government servants who had
completed 10/20/30 years of service in the previous calendar year and the
Screening Committee was to verify the length of service as on 1 st January of the
year in which the meeting was held and was to verify if any disciplinary
proceeding or criminal case was contemplated or under process against the
Government servant under consideration.
22. It requires iteration, at the cost of repetition, that the petitioner is a
member of the ACS and he came to be appointed in Class-I Junior Grade in the
ACS pursuant to a Notification dated 12.06.1995. The petitioner had completed
20 [twenty] years of service on 12.06.2015. It was only on 31.12.2015, by a
Notification of even date, the petitioner was promoted to Senior Grade-II of the
ACS. As per the MACPS, the petitioner was eligible to receive financial benefit on
01.01.2016, which was to be given effect only from 01.01.2017. Thus, to receive
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the financial benefit under the MACPS, the date, 01.01.2016 was the material
date for consideration by the Screening Committee.
23. For the purpose of adopting the sealed cover procedure in case of
promotion, it is an accepted position that the disciplinary proceeding/criminal
prosecution is said to have commenced/initiated against an employee when a
charge memo in a disciplinary proceeding or a charge-sheet in a criminal
prosecution is issued to the employee. In the present case, it is an admitted
position that no disciplinary proceeding was pending against the petitioner on
01.01.2016. In connection with Special Case no. 02/2017, the Charge-Sheet was
submitted on 30.09.2016 though the concerned FIR was lodged on 15.10.2014.
The prosecution sanction against the petitioner was granted on 12.01.2017. On
the same analogy, in the considered view of this Court, withholding of financial
benefit under the MACPS on the ground of submission of charge-sheet and
grant of prosecution sanction subsequent to the date of eligibility to receive the
financial benefit under the MACPS, that is, 01.01.2016 is impermissible.
24. The date of submission of the Charge-Sheet in Special Case no. 02/2017
was material for consideration of the case of the petitioner by the respondent
authorities for grant of financial benefit under the MACPS for the reason that for
grant of financial benefit under the MACPS, pendency of any disciplinary
proceeding or criminal prosecution was to be considered in reference to
01.01.2016 as the petitioner had completed 20 years of service in 2015. But in
the impugned Order dated 06.02.2023, the factors, which are found to be
relevant by this Court in the above discussion, were not taken into
consideration.
Page No.# 18/20
25. If an authority vested with the power to decide a matter fails to do so in
spite of a request, the person aggrieved can approach the High Court and the
High Court, in exercise of the power of judicial review, can direct the authority
to consider and decide the matter. While exercising the power of judicial review,
the High Court may direct consideration without examining the facts or the legal
questions involved and without recording any findings on the issues and may
direct the authority to consider the matter afresh. Where the authority had
decided a matter without considering relevant facts and circumstances, or by
taking extraneous or irrelevant matters into consideration, the Court can still
direct the authority to consider the matter afresh after setting aside the earlier
decision. In a separate category of cases, where the court finds the decision-
making process erroneous and records its findings as to the manner in which
the decision should be made, and then directs the authority to consider the
matter, the authority is required to consider and decide the matter in the light of
the findings or observations of the court. In the first category of cases, the
power of the authority is not circumscribed by any observations or findings of
the court. But, in the second category of cases, the power of the authority to
consider the matter is circumscribed by the observations or findings of the
court.
26. It is also settled proposition that when the High Court finds that the order
or action requires interference and exercises power of judicial review, thereby
resulting in the action/order of the State or authority being quashed, the High
Court does not ordinarily proceed to substitute its own decision in the matter, as
that would amount to exercising appellate power. The power of judicial review
Page No.# 19/20
under Article 226 of the Constitution of India emphasizes and concentrates on
the decision-making process, rather than the decision itself.
27. When the contents of the impugned Order dated 06.02.2023 are examined
in light of such settled propositions and the observations and direction made in
the Order dated 21.09.2022, the consideration of the matter for grant of
financial benefit under the MACPS provisionally to the petitioner by the
competent authority is circumscribed by the observations and the findings
recorded in the Order dated 21.09.2022. When no reflection in the impugned
Order dated 06.02.2023 as regards consideration of the matter of granting
financial benefit provisionally to the petitioner in terms of Clauses of the MACPS,
as discussed above, the impugned Order dated 06.02.2023 clearly suffers from
non-application of mind and hence, arbitrary. As the relevant factors were not
taken into consideration while passing the impugned Order, the same has made
the impugned Order dated 06.02.2023 vulnerable and unsustainable. Therefore,
the impugned Order dated 06.02.2023 is set aside and quashed.
28. In the above view of the matter, this writ petition is disposed of with a
direction to the respondent no. 1 to consider the matter of granting financial
upgradation provisionally under the MACPS as notified by the Notification dated
17.03.2017, for grant of one increment in the Pay Band [PB] of the petitioner
without changing Grade Pay [GP] strictly in terms of the MACPS after taking into
consideration the observations and the findings recorded hereinabove and
thereafter, to pass a speaking order within a time period of one month from the
date of submission of a certified copy of this order by the petitioner at his office.
Page No.# 20/20
29. With the observations made and the findings reached at as above, the writ
petition is disposed of with the above direction. There shall, however, be no
order as to cost.
JUDGE
Comparing Assistant
