Karnataka High Court

N. Prasad vs The Union Of India on 29 October, 2024

Author: Krishna S Dixit

Bench: Krishna S Dixit

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                                     WP No.13837/2017


IN THE HIGH COURT OF KARNATAKA AT BENGALURU
   DATED THIS THE 29TH DAY OF OCTOBER, 2024
                      PRESENT
    THE HON'BLE MR JUSTICE KRISHNA S DIXIT
                         AND
        THE HON'BLE MR JUSTICE C M JOSHI
    WRIT PETITION NO. 13837 OF 2017 (S-CAT)
BETWEEN:

N PRASAD,
AGED ABOUT 63 YEARS,
S/O LATE B S NANJUNDAIAH,
RECORDIST (RETIRED),
FILMS DIVISION,
MINISTRY OF INFORMATION &
BROAD CASTING, GOVT. OF INDIA,
R/AT NO.51, 'PROSPER PARK',
FLAT NO.202, SOUTH END ROAD,
BASAVANAGUDI, BENGALURU - 560 004.
                                          ...PETITIONER
(BY SRI. N G PHADKE., ADVOCATE)

AND:

1. THE UNION OF INDIA,
   MINISTRY OF INFORMATION AND
   BROAD CASTING,
   SHASTRY BHAVAN,
   NEW DELHI - 110 001.
   REPRESENTED BY ITS SECRETARY.

2. FILMS DIVISION,
   MINISTRY OF INFORMATION AND
   BROAD CASTING,
   GOVERNMENT OF INDIA,
   NO.24, DR.G. DESHMUKH MARG,
   MUMBAI - 400 026.
   REPRESENTED BY ITS DIRECTOR.
                                        ...RESPONDENTS

(BY SRI. MADHUKAR DESHPANDE., CGC)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, 1950 PRAYING TO QUASH THE ORDER DATED 18.07.2016 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALURU BENCH, BENGALURU IN O.A.NO.1619 OF 2014 AT ANNX-E AND ETC.,

THIS WRIT PETITION HAVING BEEN RESERVED FOR ORDER, COMING ON FOR PRONOUNCEMENT THIS DAY, KRISHNA S. DIXIT.J., PRONOUNCED THE FOLLOWING:

CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT and HON'BLE MR JUSTICE C M JOSHI

CAV ORDER

(PER: HON'BLE MR JUSTICE KRISHNA S DIXIT)

The Petitioner is knocking at the doors of Writ

Court for assailing, the order dated 18.07.2016

whereby the learned Central Administrative Tribunal,

Bangalore Bench has negatived his

O.A.No.1619/2019. Petitioner had sought for the

following reliefs in his OA:

"Quash the impugned OM NO. C-

18012/3/2013-Est. II dated 26.08.2014 at Annexure: A-14 issued by the II- Respondent;

(i) Direct the Respondents to revise & fix the pay of the Applicant in the Pay Band of PB-2 Rs. 9300-34800 with Grade Pay of Rs.

4800/- w.e.f 01.01.2006;

(ii) Direct the Respondents to fix the pay of the Applicant w.e.f 01.09.2008 by revising the II & III- financial upgradations to the Pay Bands of PB-3 Rs. 15600-39100 with Grade Pay of Rs. 5400/- & PB-4 Rs. 37400- 67000 with Grade Pay of Rs. 8700/- w.e.f 01.09.2008;

(iii) Direct the Respondents to pay arrears of pay by way of consequential benefits;"

2. BRIEF FACTS OF THE CASE:

a) Petitioner joined the Films Division, Ministry of Information & Broadcasting, Government of India, as Assistant Recordist on ad hoc basis wef 30.11.1974. His services came to be regularized on 07.07.1975. He was promoted as Recordist on 14.02.1983. The Assured Career Progression Scheme (hereafter 'ACPS') came to be promulgated w.e.f.

09.08.1999. Petitioner was granted 2nd Financial Upgradation from Pay Scale of Rs. 6500-10500 to that of Rs.7450-11500, admissible to the post of Chief Recordist.

b) On the recommendation of the 6th Central Pay Commission, pay of the Recordist was upgraded to Rs.7450-11500 (corresponding Pay Band/Scales & Grade Pay of Pay Band-2, Rs.9300-34800 with Grade Pay of Rs. 4600/-). The Modified Assured Career Progression Scheme (MACPS) came to be issued w.e.f

01.09.2008. As the Petitioner had completed the requisite number of years of service i.e. 20 and 30 years by then, he was given 2nd & 3rd MACPs in Grade Pay of Rs.4800 and Rs.5400, respectively. He demitted office peaceably attaining the age of superannuation in January 2014.

c) The Petitioner vide representation dated 04.04.2012 at Annexure: A-10, had sought for the grant of higher grade pay in the hierarchy w.e.f. 01.01.2006 on the ground of merger of pay and corresponding nullification of benefits granted under ACPS and further, had sought for two MACPS benefits granted w.e.f. 01.09.2008; he had sought for the change to accord with the correct and legitimate Grade Pay. He had filed O.A. No. 666/2013 firstly seeking revision of pay in corresponding PB-2 with grade pay of Rs. 4800 (Rs. 9300-34800) w.e.f 01.01.2006 and secondly, to fix his pay from 01.09.2008 by revising the 2nd & 3rd financial upgradations to the PayBand-3 with Grade Pay of Rs. 5,400 (Rs. 15600-39100) and PayBand-4 with Grade Pay of Rs. 8700 (Rs.37400-67000). The Tribunal vide order dated 04.06.2014, had directed consideration of Petitioners' representation wherein, above reliefs were sought for within a period of 2 months.

d) The Respondents, vide order dated 26.08.2014 at Annexure:A-14, rejected the subject representation and therefore, Petitioner approached the Tribunal once again in O.A. No.1619/2014 which came to be negatived by the impugned order. The same has been put in challenge before us.

3. Having heard the learned counsel for the parties and having perused the Petition Papers, we are inclined to grant indulgence in the matter for the following reasons:

3.1. The ACP and MACP Schemes are in the nature of incentive schemes to relieve stagnation in service. Revision of pay structures on the recommendations of the Central Pay Commission are to be considered while fixing the pay of the individual employee, by applying the ACP or MACP Scheme, from the dates specified in the said Schemes and the time periods of service rendered by the employee (12 and 24 years of service in case of ACP Scheme and 10, 20 and 30 years of service in case of MACP Scheme).

There is a specific provision in the Modified Assured Career Progression Scheme (MACPS) to ignore the promotions earned/upgradations granted under the earlier Assured Career Progression Scheme (ACPS) in

the past to those grades which now carry the same Grade Pay due to merger of Pay Scales/upgradations of posts as recommended by the Sixth Pay Commission.

3.2. The above is vouched by Annexure-1, paragraph 5 of MACP, a copy whereof avails at Annexure-A5 and MACP Scheme dated 19th May, 2009. The clarification issued by the Government vide O.M dated 9th September, 2010 at Annexure-A6 which is supportive of the case of Petitioner is reproduced below:

"1. Whether the Pay Band would change in the hierarchy of Pay Bands & Grade Pay on grant of the benefits under MACPS?" The answer is "Yes. The upgradation under MACPS is to be granted in the immediate next higher grade pay in the hierarchy of recommended revised pay band and grade pay as prescribed by CCS(RP) Rules, 2008."

Learned counsel for the Petitioner is justified in drawing our attention to paragraph 9 of MACPS OM dtd. 19th May 2009 at Annexure-A5, wherein the Central Government i.e., Department of Personnel and Training has reserved to itself inter alia the power to issue interpretation/clarification, regarding any doubt as to the scope and meaning of the provisions of MACP Scheme. It is in exercise of that power, the said

clarification has been issued and therefore, it binds all the quarters, that be.

3.3. The learned Counsel for the Petitioner is right in pointing out that a colleague of Petitioner by name Shri. V.B.Ranadive who was similarly placed, has been granted revised pay benefits from 01.01.2006 itself vide Annexures: A-3 and A-4. Despite vociferous submissions advanced by the learned Panel Counsel appearing for the official respondents, no differentiation has become demonstrable and therefore, Petitioner could not have been meted out a step-motherly treatment. It is not the case of Respondents that what has been accorded to the similarly placed employee, was legally wrong and therefore, rule of parity cannot be pressed into service by the Petitioner. What applies to goose should apply to gander, goes the adage.

3.4. Learned Counsel for the Petitioner is right in submitting that a Coordinate Bench of this Court vide decision dated 12.08.2021, rendered in a similar case i.e., W.P. No.18896 of 2019 (S-CAT) between SRI.K.GOPALARAJU vs. UNION OF INDIA, wherein similar claim regarding grant of higher Pay Scale in the next Pay Band under the MACPS, was examined in

the light of very same Clarification dated 09.09.2010 issued by the Government as mentioned above. The Bench has directed the Respondents to pass necessary orders under the MACP Scheme for granting higher Pay Scale in the next Pay Band and Grade Pay attached to the said Pay Band. The challenge to said decision before the Apex Court in the form of SLP came to be rejected. We are also told that even the Review Petition No. 71 of 2023, too met the same fate vide order dated 02 August 2024, after adverting to UNION OF INDIA vs. M.V. MOHANAN NAIR, AIR 2020 SC 5107.

3.5. We do not agree with the contra contention of learned CGC that the Petitioner is not entitled to revised pay from 01.01.2006 as the MACP Scheme has come into force w.e.f 01.09.2008. He also has drawn our attention to Annexure-1, paragraphs 8 & 8.1 of the MACPS at Annexure-A5, to the purport that the promotions earned in the post carrying same Grade Pay in the promotional hierarchy shall be counted for the purpose of MACPS and that consequent upon 6th Central Pay Commission's recommendations Grade Pay of Rs. 5400 is now in two Pay Bands viz, PB-2 & PB-3 and therefore, that they shall be treated as separate Grade Pays for the

purpose of grant of upgradation under MACP Scheme. This contention does not merit countenance in the light of the following observations of the Apex Court in UNION OF INDIA vs EX. HC/GD VIRENDER SINGH, 2022 SCC OnLine SC 1058:

"14. In view of the aforesaid discussion, the appeals filed by the Union of India are partly allowed and impugned judgments, to the extent they hold that the MACP Scheme applies with effect from 1.1.2006 and that under the MACP Scheme the employees are entitled to financial upgradation equivalent to the next promotional post, are set aside. MACP Scheme is applicable with effect from 1.9.2008 and as per the MACP Scheme, the entitlement is to financial upgradation equivalent to the immediate next grade pay in the hierarchy of the pay bands as stated in Section 1, Part A of the First Schedule to the Central Civil Services (Revised Pay) Rules, 2008. ..."

We are in agreement with the learned CGSC only to the extent that the MACP Scheme is made effective from 01.09.2008, as observed by the Apex Court.

3.6. We are not in agreement with the submission of learned CGC that the MACP Scheme benefit avails only to the extent of next Grade Pay upon completion of the requisite years of service in the same Pay Band. The MACP Scheme envisages not

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only upgradation in the "immediate next grade pay", as sought to be canvassed by the learned CGC, but it goes further. The MACP Scheme states that it is "placement in the immediate next higher grade pay in the hierarchy of the recommended pay bands and grade pay as given in Section 1, Part-A of the first schedule of the CCS (Revised Pay) Rules, 2008". The Hon'ble Supreme Court having noted the date of applicability of MACP Scheme from 01.09.2008, has discussed the matter. That discussion silences the voice of the Respondents. The Central Government vide O.M dated 09th September 2010 at Annexure: A-6, has specifically answered the question "Whether Pay Band would change in the hierarchy of Pay Bands & Grade Pay on grant of the MACPS ?", in the affirmative. It has dispelled the doubt stating "Yes. The upgradation under MACPS is to be granted in the immediate next higher grade pay in the hierarchy of recommended revised pay band and grade pay as prescribed by CCS(RP) Rules, 2008."

3.7. As already stated above, the ACP and MACP Schemes have been envisaged for the salutary objectives of addressing the stagnation in service of employees. The Schemes are benefits, individual in nature, given on completion of the requisite years of

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service without promotion, to the employee. The ACP Scheme envisaged benefits of promotional Pay Scales. The MACP Scheme envisages as system of Pay Bands and different Grade Pays in the said Pay Bands. The Hon'ble Supreme Court in the case of UNION OF INDIA .vs. M.V. MOHANAN NAIR (2020) 5 SCC 421, at paragraph 30 has observed:

"30. ...... pay scales under the Sixth Pay Commission and the MACP Scheme are stated to be more beneficial since it extends to the employees with time intervals with higher pay bands and various facilities which were not available under the ACP Scheme including three financial upgradations in shorter time span...".

The MACP Scheme in the light of clarificatory O.M dated 09th September 2010 and the observations of the Apex Court in the cases cited infra is envisaged to be more beneficial to the employees compared to the ACP Scheme, since it contemplates upgradation with higher Pay Bands with shorter intervals. We have no doubt in holding that the Petitioner is entitled to 2nd & 3rd MACP benefits in the next higher Pay Bands and Grade Pay attached thereto, on completion of 20 and 30 years in service, respectively. An argument to the contrary would defeat the very reason Raison d'être of the beneficial Schemes in question.

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In the above circumstances, this petition succeeds; the Writ of Certiorari issues quashing impugned order of the Tribunal; Petitioner's O.A. No.1619/2014 having been partly favoured, the impugned O.M NO.C-18012/3/2013-Est. II dated 26.08.2014 issued by the 2nd Respondent at Annexure:A-14, is hereby quashed. As a consequence, following directions are issued:

[i] Petitioner's claim for the revision & fixation of pay in the Pay Band of PB-2 i.e., Rs.9300-34800 with Grade Pay of Rs. 4800/- w.e.f 01.09.2008 is allowed.

[ii] A direction issues to the Respondents to revise II & III-financial upgradations to the Pay Bands of PB-3 (Rs. 15600-39100 with Grade Pay of Rs. 5400/-) and PB-4 (Rs. 37400-67000 with Grade Pay of Rs. 8700/-) w.e.f 01.09.2008, with arrears and consequential benefits, within a period of three months.

[iii] Delay if brooked would carry interest at the rate of one per cent per mensem for the first two months on the amount payable to the Petitioner and two per cent for the period next following. The interest