This appeal each file in the Supreme Court of India under special leave petition (SLP) against the judgment passed by the single bench and divisional bench of Patna High Court ...
No Acts & Articles mentioned in this case
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2016 OF 2020
(Arising out of SLP(C) No.21803 of 2014)
UNION OF INDIA AND OTHERS ...Appellants
VERSUS
M.V. MOHANAN NAIR …Respondent
WITH
CIVIL APPEAL NO. 2017 OF 2020
(Arising out of SLP(C) No.22181 of 2014)
CIVIL APPEAL NO. 2018 OF 2020
(Arising out of SLP(C) No.23335 of 2014)
CIVIL APPEAL NO. 2019 OF 2020
(Arising out of SLP(C) No.23333 of 2014)
CIVIL APPEAL NO. 2020 OF 2020
(Arising out of SLP(C) No.18227 of 2015)
CIVIL APPEAL NO. 2021 OF 2020
(Arising out of SLP(C) No.31125 of 2016)
CIVIL APPEAL NO. 2022 OF 2020
(Arising out of SLP(C) No.33706 of 2016)
CIVIL APPEAL NO(s). 2044-2045 OF 2020
(Arising out of SLP(C)No(s). 5917-5918 of 2017
@ SLP(C)Diary No.6042 of 2017)
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2.The instant batch of appeals have been filed assailing the
orders of various High Courts dismissing petitions filed by the
1
appellants, thereby upholding decisions rendered by different
Benches of Central Administrative Tribunal granting financial
upgradation of grade pay in the next promotional hierarchy by
placing reliance upon Union of India and others v. Raj Pal and
another CWP No.19387 of 2011 dated 19.10.2011. In these
batch matters, we are concerned with the question whether
MACP Scheme entitles financial upgradation to the next grade
pay or to the grade pay of the next promotional hierarchy.
3.In all these appeals, almost all the High Courts have
followed the Raj Pal and Ved Prakash’s case and granted relief
as prayed for by the respondents. Being aggrieved, the appellant-
UOI has filed these appeals.
4.The main questions falling for consideration in these
appeals are:-
(i)Whether MACP scheme entitles financial upgradation of
pay to the next grade pay or to the grade pay of the next
promotional post as envisaged under the ACP scheme?
Whether MACP Scheme envisages grant of financial
upgradation in Grade Pay Hierarchy and not in
promotional hierarchy?
(ii)As contended by the respondents, whether MACP scheme
is disadvantageous to the employees in comparison to
ACP scheme as long as the financial upgradation is
granted in hierarchy of grade pay under MACP scheme?
2
(iii)Whether respondents are entitled to stepping up of their
grade pay to be at par with grade pay of their juniors who
were getting the higher grade pay on account of
implementation of MACP Scheme?
Appeals relating to Issue No.III were ordered to be de-tagged and
listed separately.
5.At the outset, it is to be pointed out that almost all the
Tribunals/High Courts have only relied upon Raj Pal’s case for
grant of financial upgradation on promotional hierarchy and
rejected the stand of the appellant-UOI that under MACP
scheme, the employees are entitled to financial upgradation of
the next grade pay only. Since the matter was considered on
merits and since the issue involves impact on the public ex-
chequer and also interest of the staff of various establishments,
we requested learned Senior counsel, Mr. Jaideep Gupta to
assist the Court as amicus curiae which the learned Senior
counsel has readily consented. Mr. Kunal Chatterji, learned
counsel has agreed to assist the learned Senior counsel-amicus.
Assured Career Progression (ACP) Scheme:-
6.The Government of India with a view to “deal with the
problem of genuine stagnation and hardship faced by the
employees due to lack of adequate promotional avenues”,
3
introduced the Assured Career Progression (ACP) Scheme with
effect from 09.08.1999 vide its Office Memorandum dated
09.08.1999. To mitigate the hardship in cases of acute stagnation
in a cadre or in an isolated post, it has been decided to grant two
financial upgradations under the ACP Scheme to Group ‘B’, ‘C’
and ‘D’ employees on completion of 12 and 24 years of regular
service. As per ACP Scheme, isolated post in Group ‘A’, ‘B’, ‘C’
and ‘D’ cadres which have no promotional avenues also qualify
for similar benefits. The financial upgradations under the ACP
Scheme is placement in the higher Pay Scale and financial
benefits in the higher Pay Scale without regular promotion. Under
the financial upgradation, grant of financial benefits under the
ACP Scheme to the government servants concerned is on
personal basis. Such financial upgradation neither amounts to
regular promotion nor require creation of new post. Some of the
salient features of the ACP Scheme are as follows:-
The ACP Scheme envisages merely placement in the higher pay-
scale/grant of financial benefits (through financial upgradation) only to
the Government servant concerned on personal basis and shall,
therefore, neither amount to functional/regular promotion nor would
require creation of new posts for the purpose;
Under the ACP Scheme, two financial upgradations shall be allowed to
Group ‘B’, ‘C’ and ‘D’ employees on completion of 12 years and 24 years
of his/her regular service.
4
As per para 5.1 of Annexure-1 – conditions for grant of benefits under
the ACP Scheme, it is stipulated that two financial upgradations would
be available only if no regular promotion during the prescribed period (12
and 24 years) was granted to an employee. If an employee has already
received one regular promotion, he/she would qualify for second ACP
only on completion of 24 years of regular service. However, in case if
two regular promotions have been received by an employee, no further
benefit under the ACP Scheme would accrue in favour of the employee.
As per para 3.1 of the Office Memorandum dated 09.08.1999, the grant
of financial upgradations under the ACP Scheme shall be subject to the
conditions mentioned in the Annexure-I annexed thereon to the Office
Memorandum dated 09.08.1999.
7.Para No.8 of the Annexure provides that the financial
upgradations shall be purely personal to the employee and would
have no relevance to his/her seniority position. In other words,
there would be no additional financial upgradations for the senior
employee on the ground that the junior employee has got the
higher pay scale under the ACP Scheme. Para No.12 of
Annexure-I provides that the ACP Scheme contemplates merely
placement on personal basis in the higher pay scale/grant of
financial benefits only and shall not amount to actual functional
promotion of the employees concerned. We may usefully refer to
the relevant features of the ACP Scheme as stipulated in
Annexure-I to the Office Memorandum dated 09.08.1999-5
Conditions for Grant of Benefits under the ACP Scheme, which
reads as under:-
Conditions for grant of benefits under the ACP Scheme:-
1.The ACP Scheme envisages merely placement in the higher pay-scale/grant of
financial benefits (through financial upgradation) only to the Government servant
concerned on personal basis and shall, therefore, neither amount to
functional/regular promotion nor would require creation of new posts for the
purpose;
………
4.The first financial upgradation under the ACP Scheme shall be allowed after 12
years of regular service and the second upgradation after 12 years of regular
service from the date of the first financial upgradation subject to fulfilment of
prescribed conditions. In other words, if the first upgradation gets postponed on
account of the employee not found fit or due to departmental proceedings, etc. this
would have consequential effect on the second upgradation which would also get
deferred accordingly;
………
8. The financial upgradation under the ACP Scheme shall be purely personal to the
employee and shall have no relevance to his seniority position. As such, there shall
be no additional financial upgradation for the senior employee on the ground that
the junior employee in the grade has got higher pay-scale under the ACP Scheme;
……….
12.The proposed ACP Scheme contemplates merely placement on personal basis in
the higher pay-scale/grant of financial benefits only and shall not amount to
actual/functional promotion of the employees concerned. Since orders regarding
reservation in promotion are applicable only in the case of regular promotion,
reservation orders/roster shall not apply to the ACP Scheme which shall extend its
benefits uniformly to all eligible SC/ST employees also. However, at the time of
regular/functional (actual) promotion, the Cadre Controlling Authorities shall ensure
that all reservation orders are applied strictly;
……...”
8.ACP Scheme was replaced by Modified Assured Career
Progression (MACP) Scheme which became operational with
effect from 01.09.2008. The Sixth Central Pay Commission has
recommended the adoption of MACP Scheme primarily to rectify
the problems arising from inter-departmental disparities:-
6
(i)ACP Scheme led to creation of certain disparities within
the employees in different organisations/departments
who were directly recruited in the same pay scale who
received different financial upgradations under the ACP
Scheme because of existence of different promotional
hierarchical structure and different promotional pay
scales in different organisations/departments;
(ii)Another adverse consequence in the implementation of
the ACP Scheme was that the benefit of a higher pay
scale was not available if the next post in the hierarchy
also existed in the identical pay scale.
9.In order to bring systematic changes in the existing scheme
of ACP so that all employees irrespective of existing hierarchical
structure in their organisations/cadre get the same benefit, MACP
was recommended by the Sixth Central Pay Commission which
was accepted by the Government with certain modifications vide
its Office Memorandum dated 19.05.2009. Under the Sixth
Central Pay Commission, revised pay structure has been
implemented with effect from 01.01.2006; whereas benefits of
ACP Scheme have been allowed till 31.08.2008. Vide Office
Memorandum dated 19.05.2009, the Government of India
introduced the MACP Scheme, in supersession of the ACP
Scheme w.e.f. 01.09.2008. There shall be no change in
distinction, classification or higher status on grant of financial
7
upgradation under MACP as the upgradation is purely personal
and merely placement in the next higher Grade Pay.
Modified Assured Career Progression (MACP) Scheme:-
10.Under the MACP Scheme, three financial upgradations are
made available in the next grade pay to an employee who has
completed 10, 20 and 30 years of regular service in the same
post without getting any promotion. The benefit would be
available at the next higher grade pay. Some of the salient
features of the MACP Scheme are as follows:-
Para No.2 of the MACP Scheme provides that the “MACP
Scheme envisages merely placement in the immediate
next higher grade pay in the hierarchy of the
recommended revised pay bands and grade pay”.
As per para No.10 of the MACP Scheme – Office
Memorandum dated 19.05.2009, no stepping up of pay in
the pay band or grade pay would be admissible with regard
to junior getting more pay than the senior on account of pay
fixation under the MACP Scheme.
As per para No.11 of the said memorandum dated
19.05.2009, the differences in pay scales on account of
financial upgradations under the ACP Scheme and MACP
Scheme would not be construed as anomaly.
11.Para (19) of MACP Scheme contemplates merely
placement on personal basis in the immediate higher grade
8
pay/grant of financial benefits only and shall not amount to
actual/functional promotion of the employees concerned. As per
para (20) of the MACP Scheme, financial upgradations shall be
purely personal to the employee and shall have no relevance to
the seniority position. As such, there shall be no additional
financial upgradation for the senior employees on the ground that
the junior employees in the grade have received higher grade pay
under MACP Scheme. We may usefully extract the relevant
portion of Annexure-I of the Office Memorandum dated
19.05.2009, which reads as under:-
ANNEXURE-I
MODIFIED ASSURED CAREER PROGRESSION SCHEME (MACPS)
1. There shall be three financial upgradation s under the MACPS, counted from the
direct entry grade on completion of 10, 20 and 30 years service respectively.
Financial upgradation under the Scheme will be admissible whenever a person
has spent 10 years continuously in the same grade-pay.
2. The MACPS envisages merely placement in the immediate next higher grade
pay in the hierarchy of the recommended revised pay bands and grade pay as
given in Section 1, Part-A of the first schedule of the CCS (Revised Pay) Rules,
2008. Thus, the grade pay at the time of financial upgradation under the MACPS
can, in certain cases where regular promotion is not between two successive
grades, be different than what is available at the time of regular promotion. ln
such cases, the higher grade pay attached to the next promotion post in
the hierarchy of the concerned cadre/organisation will be given only at the
time of regular promotion.
…………
17. The financial upgradation would be on non-functional basis subject to fitness, in
the hierarchy of grade pay within the PB-1.Thereafter for upgradation under the
MACPS the benchmark of 'good' would be applicable till the grade pay of Rs.
6600/- in PB-3. The benchmark will be 'Very Good' for financial upgradation to
the grade pay of Rs. 7600 and above.
19. The MACPS contemplates merely placement on personal basis in the
immediate higher Grade pay /grant of financial benefits only and shall not
amount to actual functional promotion of the employees concerned.
Therefore, no reservation orders/roster shall apply to the MACPS, which shall
extend its benefits uniformly to all eligible SC/ST employees also. However, the
9
rules of reservation in promotion shall be ensured at the time of regular
promotion. For this reason, it shall not be mandatory to associate members of
SC/ST in the Screening Committee meant to consider cases for grant of financial
upgradation under the Scheme.
………….
25. lf a regular promotion has been offered but was refused by the employee before
becoming entitled to a financial upgradation, no financial upgradation shall be
allowed as such an employee has not been stagnated due to lack of
opportunities. If, however, financial upgradation has been allowed due to
stagnation and the employees subsequently refuse the promotion, it shall not be
a ground to withdraw the financial upgradation. He shall, however, not be eligible
to be considered for further financial upgradation till he agrees to be considered
for promotion again and the second the next financial upgradation shall also be
deferred to the extent of period of debarment due to the refusal.
……………”
12.Clause 28 contains illustrations as to grant of financial
upgradation under MACP. The illustrations in Clause 28 of the
Scheme can easily be understood by referring to the First
Schedule, Part-A of Section 1 of Central Civil Services (Revised
Pay) Rules, 2008 which gives a comparison of the scale of pay
under the 5
th
Pay Commission and the 6
th
Pay Commission as
under:-
THE FIRST SCHEDULE
(SEE RULES 3 & 4)
PART – A
SECTION I
Revised Pay Bands and Grade Pays for posts carrying present scales in Group ‘A’, ‘B’, ‘C’ & ‘D’ except
posts for which different revised scales are notified separately.
Present Scale Revised Pay Structure
Sl.No. Post/Grade Present Scale Name of Pay
Band/Scale
Corresponding
Pay Bands/Scales
Corresponding
Grade Pay
(1) (2) (3) (4) (5) (6)
1. S-1 2550-55-2660-60-3200 -1S 4440-7440 1300
2. S-2 2610-60-3150-65-3540 -1S 4440-7440 1400
3. S-2A 2610-60-2910-65-3300- 70-
4000
-1S 4440-7440 1600
Present Scale Revised Pay Structure
Sl.No. Post/Grade Present Scale Name of Pay
Band/Scale
Corresponding
Pay Bands/Scales
Corresponding
Grade Pay
4. S-3 2650-65-3300-70-4000 -1S 4440-7440 1650
5. S-4 2750-70-3800-75-4400 PB-1 5200-20200 1800
10
6. S-5 3050-75-3950-80-4590 PB-1 5200-20200 1900
7. S-6 3200-85-4900 PB-1 5200-20200 2000
8. S-7 4000-100-6000 PB-1 5200-20200 2400
9. S-8 4500-125-7000 PB-1 5200-20200 2800
10. S-9 5000-150-8000 PB-2 9300-34800 4200
11. S-10 5500-175-9000 PB-2 9300-34800 4200
12. S-11 6500-200-6900 PB-2 9300-34800 4200
13. S-12 6500-200-10500 PB-2 9300-34800 4200
14. S-13 7450-225-11500 PB-2 9300-34800 4600
15. S-14 7500-250-12000 PB-2 9300-34800 4800
16. S-15 8000-275-13500 PB-2 9300-34800 5400
17. New Scale8000-275-13500 (Group A
Entry)
PB-3 15600-39100 5400
18. S-16 9000 PB-3 15600-39100 5400
19. S-17 9000-275-9550 PB-3 15600-39100 5400
20. S-18 10325-325-10975 PB-3 15600-39100 6600
21. S-19 10000-325-15200 PB-3 15600-39100 6600
22. S-20 10650-325-15850 PB-3 15600-39100 6600
23. S-21 12000-375-16500 PB-3 15600-39100 7600
24. S-22 12750-375-16500 PB-3 15600-39100 7600
25. S-23 12000-375-18000 PB-3 15600-39100 7600
26. S-24 14300-400-18300 PB-4 37400-67000 8700
27. S-25 15100-400-18300 PB-4 37400-67000 8700
28. S-26 16400-450-20000 PB-4 37400-67000 8900
29. S-27 16400-450-20900 PB-4 37400-67000 8900
30. S-28 14300-450-22400 PB-4 37400-67000 10000
Present Scale Revised Pay Structure
Sl.No. Post/Grade Sl.No. Post/Grade Sl.No. Post/Grade
31. S-29 18400-500-22400 PB-4 37400-67000 10000
32. S-30 22400-525-24500 PB-4 37400-67000 12000
33. S-31 22400-600-26000 HAG + Scale 75500 (annual
increment @ 3 %)
- 80000
Nil
34. S-32 24050-650-26000 HAG + Scale 75500 (annual
increment @ 3 %)
- 80000
Nil
35. S-33 26000 (Fixed) Apex Scale 80000 (Fixed) Nil
36. S-34 30000 (Fixed) Cab. Sec. 90000 (Fixed) Nil
Comparison of ACP and MACP Scheme :-
13.For grant of financial upgradation under ACP Scheme, a
Screening Committee shall be constituted for the purpose of
processing the cases for grant of benefits under the ACP
Scheme. In terms of Clause 6.2 of the ACP Scheme, the
composition of the Screening Committee shall be the same as
that of Departmental Promotion Committee (DPC) prescribed
11
under the relevant recruitment/service rules for regular promotion
to the higher grade to which financial upgradation is to be
granted. The requirement that the composition of the Screening
Committee shall be the same as that of DPC, under ACP
Scheme, the consideration for financial upgradations are stringent
and the government servant has to satisfy the norms for
promotion. Fulfilment of normal promotional norms like
benchmark, departmental examination, seniority-cum-fitness (in
case of Group ‘D’ employees) are the requirement for grant of
financial upgradation under ACP Scheme.
14.Per contra, under the MACP Scheme, financial upgradation
is granted in the 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 CCS (Revised Pay) Rules, 2008.
Under the MACP Scheme, the financial upgradation would be on
non-functional basis subject to fitness in the hierarchy of Grade
Pay. MACP Scheme contemplates merely placement on personal
basis in the immediate higher Grade Pay/grant of financial
benefits only and shall not amount to actual/functional promotion
of the employees concerned (vide para (19) of the MACP
Scheme). In terms of para (20) of MACP Scheme, financial
12
upgradation under the MACP Scheme shall be purely personal to
the employees and shall have no relevance to the seniority
position. As such there shall be no additional financial
upgradation for the senior employees on the ground that the
junior employee in the grade has got higher pay/higher Grade
Pay under MACP Scheme (vide para (20) of the MACP Scheme).
15.The distinction between the ACP Scheme and MACP
Scheme can be well understood by reference to the Pay Scale
under the Fifth Central Pay Commission and the revised pay
structure under the Sixth Central Pay Commission and the
corresponding Grade Pay thereon as stated in Section-1, Part-A
of the First Schedule of CCS (Revised Pay) Rules, 2008.
THE FIRST SCHEDULE
(SEE RULES 3 & 4)
PART – A
SECTION I
Revised Pay Bands and Grade Pays for posts carrying present scales in Group ‘A’, ‘B’, ‘C’ & ‘D’ except
posts for which different revised scales are notified separately.
Present Scale Revised Pay Structure
Sl.No. Post/Grade Present Scale Name of Pay
Band/Scale
Corresponding
Pay Bands/Scales
Corresponding
Grade Pay
(1) (2) (3) (4) (5) (6)
5. S-4 2750-70-3800-75-4400 PB-1 5200-20200 1800
6. S-5 3050-75-3950-80-4590 PB-1 5200-20200 1900
7. S-6 3200-85-4900 PB-1 5200-20200 2000
8. S-7 4000-100-6000 PB-1 5200-20200 2400
9. S-8 4500-125-7000 PB-1 5200-20200 2800
10. S-9 5000-150-8000 PB-2 9300-34800 4200
11. S-10 5500-175-9000 PB-2 9300-34800 4200
12. S-11 6500-200-6900 PB-2 9300-34800 4200
13. S-12 6500-200-10500 PB-2 9300-34800 4200
14. S-13 7450-225-11500 PB-2 9300-34800 4600
15. S-14 7500-250-12000 PB-2 9300-34800 4800
13
16.Upon implementation of the Sixth Central Pay Commission,
the Pay Scale of 3050-75-3950-80-4590 was kept in Pay Band-1
i.e. Rs.5200-20200 with Grade Pay of Rs.1900/-. Likewise, the
Pay Scale of 3200-85-4900 was kept in Pay Band-1 i.e. 5200-
20200 with Grade Pay of Rs.2000/-. Pay Scale of Upper Division
Clerk 4000-100-6000 was also kept in the same Pay Band-1 i.e.
5200-20200 but with Grade Pay of Rs.2400/-. Under the ACP
Scheme, the Government employee who was working as Lower
Division Clerk in the Pay Scale of 3050-75-3950-80-4590, on
completion of 12 years of service, would be entitled to the
financial upgradation in the next promotional hierarchy i.e. in the
cadre of UDC i.e. Pay Scale of 4000-100-6000 while working in
the same capacity as LDC. Whereas under the MACP Scheme,
the Government servant who is Lower Division Clerk in the Pay
Band-1 i.e. Rs.5200-20200/- with Grade Pay of Rs.1900/-, on
completion of 10 years of service upon grant of financial
upgradation, would be getting the immediate next higher Grade
Pay of Rs.2000/- and not the grade pay on promotional hierarchy.
Following the erstwhile ACP Scheme (as per which financial
upgradation was granted in promotional hierarchy), the
respondents are claiming the benefit of Grade Pay of Rs.4200/-
14
(which is in the next promotional hierarchy). While the
respondents are granted financial upgradations as per the
prevailing rules of MACP Scheme, they can only claim the
immediate next higher Grade Pay and not the Grade Pay in the
next promotional hierarchy.
17.As noted above, under the Sixth Pay Commission, scales of
pay of various hierarchies namely Lower Division Clerk and
Upper Division Clerk are all placed in the Pay Band-I i.e.
Rs.5200-20200, of course with different Grade Pay. When the
respondents are enjoying the benefit of the Sixth Pay
Commission by getting higher pay scale, they should go by the
Scheme in accepting what it gives on the financial upgradation;
but the respondents are claiming the best of the benefits from
both the ACP and MACP Schemes. The respondents have
already been granted the beneficial pay upgradation as per the
prevailing rules of MACP Scheme on the recommendation of the
Sixth Central Pay Commission. The previous ACP Scheme was
withdrawn and superseded by MACP Scheme with effect from
01.09.2008 based on the recommendation of the Sixth Central
Pay Commission. Under MACP Scheme, the respondent can only
15
claim immediate next Grade Pay and not the corresponding
Grade Pay in promotional hierarchy.
18.As discussed earlier, in the ACP Scheme, there was no
Grade Pay but only fixed Pay Scales and fixed increments were
there. After the Sixth Central Pay Commission, various Pay
Scales have been clubbed together and there is revised Pay
Scale with corresponding Pay Bands and corresponding Grade
Pay. As discussed earlier, the norms for grant of ACP were
stringent and the government servant has to satisfy the norms for
promotion. Whereas under the MACP Scheme, for financial
upgradation, the rigour of screening is diluted. For upgradation
under the MACP Scheme, the benchmark of “Good” would be
applicable till the Grade Pay of Rs.6600/- in Pay Band-3. The
benchmark will be “Very Good” for financial upgradation to the
Grade Pay of Rs.7600/- and above.
Contentions:-
19.Ms. Madhvi Divan, learned ASG appearing on behalf of
Union of India has taken us through the salient features of both
ACP and MACP schemes and submitted that ACP and MACP
schemes shall be subject to the conditions mentioned thereon.
16
Learned ASG has submitted that Sixth Central Pay Commission
took the view that ACP led to disparities within the employees in
different organisations/departments and recommended adoption
of the modified scheme which was accepted by the Government
and Sixth Central Pay Commission and MACP scheme are being
implemented. It was submitted that under the ACP scheme, the
employee is entitled to financial upgradations (two times – on
completion of 12 and 24 years of regular service) as per
promotional hierarchy. Whereas under the MACP scheme, the
financial upgradations (three times – on completion of 10, 20 and
30 years of regular service) are fixed on the basis of immediate
next grade pay and therefore, ACP and MACP schemes are
significantly different in terms of the effect and benefit to the
employees. Learned ASG submitted that the previous ACP
scheme was withdrawn and it is superseded by the MACP
scheme w.e.f. 01.09.2008 and the respondents while enjoying the
benefits of revised pay structure under the Sixth Central Pay
Commission, cannot cherry-pick the benefit of financial
upgradation in the next promotional hierarchy under the erstwhile
ACP scheme. Learned ASG has further submitted that it is the
prerogative of the Government to provide any financial benefit to
17
its employees and so long as such scheme is not discriminatory
or arbitrary, the Court may not interfere with schemes of
Government fixing pay scales and granting incentives.
20.Mr. Vinay Kumar Garg, learned Senior counsel appearing
on behalf of some respondents has submitted that pay band
includes a bracket of erstwhile pay scale and the grade pay and
the concept of grade pay is a fitment benefit applicable to
different pay. Learned Senior counsel submitted that when a
person is to be given benefit, pay, allowance or upgradation of the
pay has to be given and in such a case, the upgradation has to
be in the next hierarchy of promotional position i.e. grade pay in
the next promotional position. It was submitted that pay,
allowance and financial upgradation granted to the employees
are the “conditions of service” and the same cannot be altered at
the will of the employer-Government. Learned Senior counsel
further submitted that MACP scheme envisages merely
placement in the immediate next higher grade pay and the word
“hierarchy” cannot be dissected from the “recruitment” and
“conditions of service”. It was submitted that as per Rule 3(7) of
Central Civil Services (Revised Pay) Rules, 2008, “revised pay
structure” in relation to any post specified in column (2) of the
18
First Schedule means the pay band and grade pay specified
against that post or the pay scale specified in column (5) and (6)
thereof. It was submitted that while granting financial upgradation
under MACP scheme, the same has to be in the “higher grade
pay in the next promotional hierarchy and not merely in the
hierarchy of grade pay”.
21.Mr. Jaideep Gupta, learned amicus assisted by Kunal
Chatterji submitted that the object and purpose of the 1999 ACP
was to mitigate hardship in case of acute stagnation either in a
cadre or in an isolated post and MACP scheme of 2009 is also for
the same purpose and grant of financial upgradation under MACP
scheme is only continuation of the existing scheme with certain
modifications. Learned amicus further submitted financial
upgradation which is granted under the ACP and MACP both
involve fixation/refixation of pay and allowance which become the
basis of the fixation of pay and allowances for the rest of the
career of the employee concerned and such financial upgradation
is not merely a special allowance which can be granted or taken
back at the will of the employer. Learned amicus has submitted
that MACP scheme linked to the grade pay should not be taken
into consideration and MACP scheme should be interpreted to
19
mean that financial upgradation has to be granted to the grade
pay of the next promotional post and not to the next grade pay in
the Schedule I to the CCS (Revision of Pay) Rules. Learned
amicus urged the Court to adopt a purposive interpretation of the
MACP scheme to grant financial upgradation in the next
promotional hierarchy as in the erstwhile ACP scheme. It was
contended that if financial upgradation is granted in the hierarchy
of grade pay then MACP scheme would lead to a discriminatory
treatment violating Article 14 of the Constitution of India. In this
regard, learned amicus has drawn the attention of the Court to
the discussion of the Joint Committee of MACP scheme held
under the Chairmanship of the Joint Secretary (E) of the
Department of Personnel and Training on 06.10.2010.
22.Mr. C.K. Sasi, learned counsel appearing for the
respondents in SLP(C) No.21803 of 2014 and SLP(C) No.29605
of 2017 has submitted that when the Pay Commission and
incentive scheme is introduced, the employee’s interest has to be
kept in view and the same cannot be disadvantageous to the
employees when compared to the erstwhile scheme. In support of
his contention, learned counsel has drawn our attention to the
20
comparative chart which he has filed along with his written
submission.
23.Reiterating the submissions of learned amicus and the other
submissions, Ms. Prabha Swami, learned counsel appearing for
the respondents in SLP(C) No.31125 of 2016 has taken us
through the facts and submitted that if the ACP had been
continued after the completion of twenty-four years of service,
respondents (SLP(C) No.31125 of 2016) would have been in the
grade pay of Rs.5400/- in Pay Band-3 whereas due to MACP, the
respondents were placed in grade pay of Rs.4600/- in Pay Band-
2 and this has caused discrimination and financial hardship to the
respondents. Learned counsel has also drawn our attention to the
comparative chart and submitted that MACP scheme has
operated to the disadvantage of the respondents.
24.Mr. M.K. Bhardwaj, learned counsel representing the
intervenors has drawn our attention to the Record Note of the
meeting of the Joint Committee on MACP scheme held under the
Chairmanship of the Joint Secretary, DOP&T on 15.09.2010 and
submitted that the Committee had taken note of various
anomalies and also as to how the implementation of MACP has
resulted as a disadvantage to the Government servants. Mr.
21
Bhardwaj has drawn our attention to various anomalies noted by
the Committee and submitted that in Raj Pal’s case, the Record
Note of the third meeting of MACP scheme held on 15.03.2011
was taken note by the High Court and the High Court rightly held
that Raj Pal is entitled to financial upgradation in the grade pay
based on the next promotional hierarchy. It was submitted that if
the financial upgradation is to be granted on the basis of next
grade pay, it would be greatly disadvantageous to the employees.
Discussion and findings:-
25.Though various contentions have been raised assailing the
MACP Scheme viz. “financial upgradation in the next Grade
Pay” and “no stepping up of pay on the ground that junior
getting more pay”, be it noted that the clauses of the MACP
Scheme including the clause providing the financial upgradation
in the next Grade Pay have not been challenged by the
respondents. In the impugned judgments, the Tribunals/High
Courts have only relied upon Raj Pal’s case and not gone into the
MACP Scheme vis-à-vis erstwhile ACP Scheme and also not
considered the merits of the contention of the respondents. We
have therefore, considered the MACP Scheme vis-à-vis erstwhile
22
ACP Scheme in the light of the contentions raised by the
respondent.
26.As pointed out earlier, both ACP and MACP Schemes are in
the nature of incentive schemes devised with the object of
ensuring that the employees who are unable to avail of adequate
promotional opportunities, get some relief from stagnation in the
form of financial benefits. Under the MACP Scheme, financial
upgradations are granted at three regular intervals on completion
of 10-20-30 years of service without promotion. Hence, it is also
intended to ensure that the employees are adequately
incentivised to work efficiently despite not getting promotion for
want of promotional avenue. The change in policy brought about
by supersession of the ACP Scheme with the MACP Scheme is
after well-deliberated and well-documented recommendations of
the Sixth Central Pay Commission. Considering the various
issues in the implementation of the ACP Scheme, the Pay
Commission expressed its views “the only other way is to bring
systematic changes in the existing Scheme of ACP so that all the
employees irrespective of the existing hierarchy structure in their
organisations/cadres, get some benefit under it”. The
Commission therefore, recommended that the existing Scheme of
23
ACP be continued with the modifications indicated thereon in the
Report that the financial upgradation has to be in the next
immediate Grade Pay. One of the reasons for the expert body
recommending the MACP Scheme was that there were inter-
departmental disparities where several departments had varying
promotional hierarchies. As a result, the working of ACP Scheme
under which an employee who stagnated for 12 years, was
entitled to pay in the Pay Scale of the next promotional post, led
to inter-departmental anomalies. The Pay Commission therefore,
recommended MACP Scheme with a view to putting an end to
the problem ensuing from inter-departmental disparities.
27.The learned amicus and the learned counsel appearing for
the respondents urged the court to adopt a “purposive
interpretation” that the words “immediate next higher Grade Pay”
to be interpreted as “Grade Pay of the next promotional post” in
the hierarchy. MACP Scheme envisages merely placement in the
immediate next higher Grade Pay. By perusal of the MACP
Scheme extracted earlier, it is seen that the words used in the
Scheme are “placement in the immediate next higher Grade
Pay in the hierarchy of the recommended revised pay bands”.
The term “Grade Pay in the next promotional post ” is
24
conspicuously absent in the entire body of the MACP Scheme.
The argument of the respondents that the benefit of MACP
Scheme is referable to the promotional post, is de hors the MACP
Scheme and cannot be accepted. Though ACP and MACP
Schemes are intended to provide relief against stagnation, both
the Schemes have different features. 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 the three financial
upgradations in shorter time span. In any event, MACP Scheme
has not been challenged by the respondents. As rightly
contended by the learned ASG, the respondents cannot be
permitted to cherry-pick beneficial features from the erstwhile
ACP Scheme and also take advantage of the beneficial features
in the MACP Scheme.
28.The object behind the MACP Scheme is to provide relief
against the stagnation. If the arguments of the respondents are
to be accepted, they would be entitled to be paid in accordance
with the grade pay offered to a promotee; but yet not assume the
responsibilities of a promotee. As submitted on behalf of Union of
25
India, if the employees are entitled to enjoy Grade Pay in the next
promotional hierarchy, without the commensurate responsibilities
as a matter of routine, it would have an adverse impact on the
efficiency of administration.
29.The change in policy brought about by supersession of ACP
Scheme with the MACP Scheme is after consideration of all the
disparities and the representations of the employees. The Sixth
Central Pay Commission is an expert body which has
comprehensively examined all the issues and the representations
as also the issue of stagnation and at the same time to promote
efficiency in the functioning of the departments. MACP Scheme
has been introduced on the recommendation of the Sixth Central
Pay Commission which has been accepted by the Government of
India. After accepting the recommendation of the Sixth Central
Pay Commission, the ACP Scheme was withdrawn and the same
was superseded by the MACP Scheme with effect from
01.09.2008. This is not some random exercise which is
unilaterally done by the Government, rather, it is based on the
opinion of the expert body – Sixth Central Pay Commission which
has examined all the issues, various representations and
disparities. Before making the recommendation for the Pay
26
Scale/Revised Pay Scale, the Pay Commission takes into
consideration the existing pay structure, the representations of
the government servants and various other factors after which the
recommendations are made. When the expert body like Pay
Commission has comprehensively examined all the issues and
representations and also took note of inter-departmental
disparities owing to varying promotional hierarchies, the court
should not interfere with the recommendations of the expert body.
When the government has accepted the recommendation of the
Pay Commission and has also implemented those, any
interference by the court would have a serious impact on the
public exchequer.
30.Observing that it is the function of the Government which
normally acts on the recommendations of the Pay Commission
which is the proper authority to decide upon the issues, in Union
of India and another v. P.V. Hariharan and another (1997) 3 SCC
568, it was held as under:-
“5. ….. It is the function of the Government which normally acts on
the recommendations of a Pay Commission. Change of pay scale
of a category has a cascading effect. Several other categories
similarly situated, as well as those situated above and below, put
forward their claims on the basis of such change. The Tribunal
should realise that interfering with the prescribed pay scales is a
27
serious matter. The Pay Commission, which goes into the problem
at great depth and happens to have a full picture before it, is the
proper authority to decide upon this issue. Very often, the doctrine
of “equal pay for equal work” is also being misunderstood and
misapplied, freely revising and enhancing the pay scales across the
board. We hope and trust that the Tribunals will exercise due
restraint in the matter. Unless a clear case of hostile discrimination
is made out, there would be no justification for interfering with the
fixation of pay scales. We have come across orders passed by
Single Members and that too quite often Administrative Members,
allowing such claims. These orders have a serious impact on the
public exchequer too. It would be in the fitness of things if all
matters relating to pay scales, i.e., matters asking for a higher pay
scale or an enhanced pay scale, as the case may be, on one or the
other ground, are heard by a Bench comprising at least one Judicial
Member. ….”
31.Observing that the decision of expert bodies like the Pay
Commission is not ordinarily subject to judicial review, in State of
U.P. and Others v. U.P. Sales Tax Officers Grade II Association
(2003) 6 SCC 250, the Supreme Court held as under:-
“11. There can be no denial of the legal position that decision of
expert bodies like the Pay Commission is not ordinarily subject to
judicial review obviously because pay fixation is an exercise
requiring going into various aspects of the posts held in various
services and nature of the duties of the employees…...”.
32.In Secretary, Government (NCT of Delhi) and others v.
Grade-1 Officers Association and others (2014) 13 SCC 296, the
Supreme Court refused to interfere with the ACP Scheme as it
28
would violate government policy and since exercise of judicial
review would not be proper, upheld the ACP Scheme and the
conditions therein.
33.In State of Tamil Nadu v. S. Arumugham (1998) 2 SCC 198,
the Supreme Court has observed that the government has the
right to frame a policy to ensure efficiency and proper
administration and to provide to suitable avenues for promotion to
officers working in different department. The Supreme Court has
further observed that the Tribunal cannot substitute its own views
for the views of the government or direct new policy based on the
views of Tribunal.
34.Observing that fixation of pay and determination of
responsibilities is a complex matter which is for the executive to
take a decision, the courts should approach such matters with
restraint, in State of Haryana and Another v. Haryana Civil
Secretariat Personal Staff Association (2002) 6 SCC 72, the
Supreme Court held as under:-
“10. It is to be kept in mind that the claim of equal pay for equal
work is not a fundamental right vested in any employee though it
is a constitutional goal to be achieved by the Government.
Fixation of pay and determination of parity in duties and
responsibilities is a complex matter which is for the executive to
29
discharge. While taking a decision in the matter, several relevant
factors, some of which have been noted by this Court in the
decided case, are to be considered keeping in view the prevailing
financial position and capacity of the State Government to bear
the additional liability of a revised scale of pay……… That is not
to say that the matter is not justiciable or that the courts cannot
entertain any proceeding against such administrative decision
taken by the Government. The courts should approach such
matters with restraint and interfere only when they are satisfied
that the decision of the Government is patently irrational, unjust
and prejudicial to a section of employees and the Government
while taking the decision has ignored factors which are material
and relevant for a decision in the matter. Even in a case where
the court holds the order passed by the Government to be
unsustainable then ordinarily a direction should be given to the
State Government or the authority taking the decision to
reconsider the matter and pass a proper order. The court should
avoid giving a declaration granting a particular scale of pay and
compelling the Government to implement the same…… ”.
[Underlining added]
35.The prescription of Pay Scales and incentives are matters
where decision is taken by the Government based upon the
recommendation of the expert bodies like Pay Commission and
several relevant factors including financial implication and court
cannot substitute its views. As held in Haryana Civil Secretariat
Personal Staff Association (2002) 6 SCC 72, the court should
approach such matters with restraint and interfere only when the
court is satisfied that the decision of the Government is arbitrary.
30
Even in a case where the court takes the view that order/Scheme
passed by the Government is not an equitable one, ordinarily only
a direction could be given to the State Government or the
authority for consideration of the matter and take a decision. In
the present batch of cases where the respondents are claiming
financial upgradation in the grade pay of promotional hierarchy,
no grounds are made out to show that the MACP Scheme
granting financial upgradation in the next grade pay is arbitrary
and unjust; warranting interference. The implementation of the
MACP Scheme is claimed to have led to certain anomalies; but
as pointed out earlier, MACP Scheme itself is not under
challenge.
36.Raj Pal’s Case – Whether could have been taken as a
precedent:- In almost all the cases, the High Courts have relied
upon Raj Pal’s case only on the basis that Raj Pal’s case was
dismissed by the Supreme Court. Even at the outset, it is to be
pointed out that Raj Pal’s case, SLP (C) No. ……CC 7467 of
2013 was dismissed by the Supreme Court vide order dated
15.04.2013 on the ground that there was no sufficient explanation
to condone the delay in refiling the Special Leave Petition which
is a default in the manner in which the case was prosecuted and
31
not a dismissal on merits. Be that as it may, since various High
Courts have relied upon Raj Pal’s case, it is necessary to refer to
the facts, findings thereon and whether it could have been
followed as precedent.
37.Raj Pal was working in the post of Photocopier w.e.f.
12.10.1986 in the pay scale of Rs.3050-4590/- in the Central
Administrative Tribunal, Chandigarh Bench, Chandigarh. The
post of Photocopier is an isolated post. Upon introduction of the
ACP Scheme in the year 1999, on completion of twelve years of
regular service, Raj Pal was granted the next higher scale in the
hierarchy of pay scales i.e. Rs.3200-4590/- vide order dated
12.10.1999. At that point of time, Raj Pal claimed parity with
other posts like Hindi Typist/LDC which was also in the equivalent
pay scale of Rs.3050-4590/- and had been placed in the scale of
Rs.4000-6000/- on the grant of 1
st
financial step up on completion
of twelve years of regular service. He also claimed that on
completion of twenty-four years of regular service in second
financial step up, he should be placed in the scale of Rs.5500-
9000/-. In the earlier round of litigation, Raj Pal filed O.A.
No.278/CH/2004 claiming the aforesaid parity with posts like
Hindi Typist/LDC and the same was allowed by Central
32
Administrative Tribunal by its order dated 30.08.2004 whereby
Raj Pal was held entitled to the benefit of higher pay scale under
the ACP Scheme of 1999 as applicable for the similar posts i.e.
Hindi Typist/LDC. The order dated 30.08.2004 was challenged by
Union of India before the High Court in CWP No.7356/CAT of
2005 and the same was dismissed vide order dated 23.05.2007.
38.For proper appreciation of Raj Pal’s case, we may refer to
the relevant scales of pay with revised Pay Bands, which are as
under:-
Present Scale Revised Pay Structure
Sl.No.Post/
Grade
Present Scale Name of
Pay
Band/Scale
Corresponding Pay
Bands/Scales
Corresponding
Grade Pay
(1) (2) (3) (4) (5) (6)
6. S-53050-75-3950-80-4590 PB-1 5200-20200 1900
7. S-63200-85-4900 PB-1 5200-20200 2000
8. S-74000-100-6000 PB-1 5200-20200 2400
9. S-84500-125-7000 PB-1 5200-20200 2800
10. S-95000-150-8000 PB-2 9300-34800 4200
11.S-105500-175-9000 PB-2 9300-34800 4200
Upon implementation of the Sixth Central Pay Commission, the
scale of Rs.3050-4590/- was kept in PB-1-Rs.5200-20200/- with
grade pay of Rs.1900/-. The scale of Rs.4000-6000/- was also
kept in PB-1 with grade pay of Rs.2400/-. The scale of Rs.5500-
9000/- was kept in PB-2-Rs.9300-34800/- with grade pay of
Rs.4200/-. In terms of MACP Scheme, by the order dated
33
09.08.2010, Raj Pal was granted second financial upgradation in
the PB-1 of Rs.5200-20200/- with grade pay of Rs.2400/-.
39.Raj Pal filed OA No. 1038/CH/2010 before CAT contending
that his pay has been wrongly fixed in PB-1 in the scale of
Rs.5200-20200/- with Grade Pay of Rs. 2400/-. He claimed that
he was entitled to be fixed in PB-2 in the scale of Rs.9300-
34800/- with Grade Pay of Rs. 4600/-. Raj Pal relied on para (6)
of the MACP Scheme as per which in case of employees granted
financial upgradations under ACP Scheme till 01.01.2006, their
revised pay will be fixed with reference to the pay scale granted
to them under ACP. The Tribunal vide its order dated 31.05.2011
noted that it is not disputed that the post held by Raj Pal has been
declared equivalent to the post of LDC/Hindi Typist etc. by the
Tribunal as well as the High Court in matters of grant of ACP and
these pronouncements have attained finality and also stood
implemented. The OA was allowed and the appellants were
directed to grant second financial upgradation in the promotional
hierarchy in PB-2 in the scale of Rs.9300-34,800/- with Grade
Pay of Rs.4,200/- to Raj Pal under the MACP from due date and
fix his pay in the hierarchy of posts decided in his case earlier.
The appellants filed CWP No.19387 of 2011 before the High
34
Court assailing the aforesaid order. It was inter alia contended by
the appellants that the earlier ACP Scheme stood superseded by
the MACP scheme and both the schemes cannot run
concurrently. The said writ petition was dismissed by the High
Court.
40.The above judgment of the High Court was challenged in
the Supreme Court by filing SLP (C) No. ….CC 7467 of 2013.
The SLP was filed on 24.12.2011; but some defects were
observed by the Court Registry and returned for rectification
whereafter the SLP was refiled only on 21.03.2013. The SLP was
dismissed by the Hon’ble Chamber Judge vide order dated
15.04.2013 on the ground that sufficient explanation has not been
given to condone the delay in refiling the SLP.
41.Insofar as Raj Pal’s case is concerned, in view of the
dismissal of the earlier writ petition i.e. CWP No.7356/CAT of
2005, Principal Bench of the Tribunal issued letter dated
02.08.2007 directing all the Benches of the Tribunal that the
Photocopiers working in the respective Benches may be granted
1
st
financial upgradation under ACP Scheme in the scale of pay of
Rs.4000-6000/- and 2
nd
financial upgradation in the scale of
Rs.5500-9000/-. In Raj Pal’s case, taking note of the earlier round
35
of litigation i.e. O.A.No.278/CH/2004 and CWP No.7356/CAT of
2005 and the letter sent by the Principal Bench of the Tribunal
dated 02.08.2007 in its order dated 31.05.2011 in O.A. No.
1038/CH/2010, the Tribunal held that Raj Pal having been placed
under ACP scheme – second financial upgradation in the scale of
Rs.5500-9000/- is entitled to PB-2 (Rs.9300-34800/- with grade
pay of Rs.4200/-). The relevant findings of the Tribunal in O.A.
No.1038/CH/2010 read as under:-
“4. The respondents took the matter to Punjab and Haryana High Court
by way of filing a CWP No.7356 CAT of 2005. The CWP was dismissed
vide order dated 23.05.2007, holding the applicant entitled to the benefit
of ACP at par with the LDC/Hindi Typist, etc. It was thereafter that the
Principal Bench of the Tribunal issued letter dated 02.08.2007, directing
all the Benches of the Tribunal that the Photocopiers working in
respective Benches may be granted 1
st
financial upgradation under ACP
Scheme in the scale of pay of Rs.4000-6000 and 2
nd
financial
upgradation in the scale of Rs.5500-9000.
………..
12. There is no dispute that the applicant is holding the post of
photocopier, which is an isolated post, having no avenues for promotion.
It is also not disputed that, the post held by the applicant had been
declared equivalent to the post of LDC/Hindi Typist, etc. by the Tribunal
as well as the High Court by judicial pronouncement in matters of grant
of ACP, which have attained finality and stands implemented also.
Accordingly, applicant was granted 1
st
ACP (under the old ACP) w.e.f.
09.08.1999 in the pay scale of Rs.4000-6000.” [Underlining added]
36
42.It was on the above, the Tribunal held that the post of
Photocopier being an isolated post and in view of the letter dated
02.08.2007 sent by the Principal Bench and taking note of the
earlier round of litigation, the Tribunal directed that Raj Pal be
granted PB-2-Rs.9300-34800/- with grade pay of Rs.4200/-. In
the case of Raj Pal, the post of Photocopier, being an isolated
post, the order was passed in the peculiar facts and
circumstances of the case. Rajpal’s case did not go into any
details in respect of the overall features of the new MACP
Scheme and did not consider the recommendations of the expert
body which culminated in the new Scheme. The order passed in
Raj Pal’s case could not have been taken as a precedent in other
cases. This is all the more so when SLP (C) No.….CC 7467 of
2013 was dismissed by the Supreme Court on the ground of
delay in refiling the Special Leave Petition and no decision was
rendered on merits.
Dismissal of case by the Supreme Court on the ground of
delay in filing/non-filing, is not a binding precedent:-
43.As noted above, SLP preferred by Union of India against the
order dated 19.10.2011 passed by the High Court was dismissed
on the ground that the delay in refiling has not been satisfactorily
37
explained. The question which arises for consideration is when
the SLP has been dismissed on the ground of delay in filing or of
refiling (like in the case of Raj Pal), whether it can be taken as a
binding precedent on the merits of the case as the “law declared
by the Supreme Court within the meaning of Article 141 of the
Constitution of India”.Raj Pal’s case having been dismissed on
the ground that no sufficient cause was shown for the delay in
refiling, in our considered view, Raj Pal’s case ought not to have
been quoted as a precedent of this Court by the High Courts.
44.Article 141 of the Constitution of India provides that the law
declared by the Supreme Court shall be binding on all courts
within the territory of India, i.e. the pronouncement of the law on
the point shall operate as a binding precedent on all courts within
India. Law declared by the Supreme Court has to be essentially
understood as a principle laid down by the court and it is this
principle which has the effect of a precedent. A principle as
understood from the word itself is a proposition which can only be
delivered after examination of the matter on merits. It can never
be in a summary manner, much less be rendered in a decision
delivered on technical grounds, without entering into the merits at
all. A decision, unaccompanied by reasons can never be said to
38
be a law declared by the Supreme Court though it will bind the
parties inter-se in drawing the curtain on the litigation. In Union
of India v. All India Service Pensioners’ Association and another
(1988) 2 SCC 580, the Supreme Court held that “when reasons
were made by the Supreme Court for dismissing the SLP, the
decision becomes one which attracts Article 141 of the
Constitution which provides that the law declared by the Supreme
Court shall be binding on all the courts within the territory of
India……”.
45.Observing that when a Special Leave Petition is dismissed
by a non-speaking order, by such dismissal, the Supreme Court
does not lay down any law as envisaged under Article 141 of the
Constitution of India in Supreme Court Employees Welfare
Association v. Union of India and Others (1989) 4 SCC 187, this
Court held as under:-
“22. ….It is now a well-settled principle of law that when a special leave
petition is summarily dismissed under Article 136 of the Constitution, by
such dismissal this Court does not lay down any law, as envisaged by
Article 141 of the Constitution, as contended by the learned Attorney
General. In Indian Oil Corporation Ltd. v. State of Bihar (1986) 4 SCC
146 it has been held by this Court that the dismissal of a special leave
petition in limine by a non-speaking order does not justify any inference
that, by necessary implication, the contentions raised in the special leave
petition on the merits of the case have been rejected by the Supreme
39
Court. It has been further held that the effect of a non-speaking order of
dismissal of a special leave petition without anything more indicating the
grounds or reasons of its dismissal must, by necessary implication, be
taken to be that the Supreme Court had decided only that it was not a fit
case where special leave petition should be granted. In Union of India v.
All India Services Pensioners’ Association (1988) 2 SCC 580 this Court
has given reasons for dismissing the special leave petition. When such
reasons are given, the decision becomes one which attracts Article 141
of the Constitution which provides that the law declared by the Supreme
Court shall be binding on all the courts within the territory of India. It,
therefore, follows that when no reason is given, but a special leave
petition is dismissed simpliciter, it cannot be said that there has been a
declaration of law by this Court under Article 141 of the Constitution.”
[underlining added]
Raj Pal’s case having been dismissed on the ground that no
sufficient cause was shown for the delay in refiling, Raj Pal’s case
ought not to have been quoted as precedent of this Court by the
High Courts.
46.The learned counsel for the intervenors has referred to the
record note of the meetings of the Joint Committee of MACP held
under the chairmanship of JS(Establishment), DoP&T on
15.09.2010 and other dates and drawn our attention to various
items viz. Item No.1-Provide for Grade Pay of the Next
Promotional Post under MACP; Item No.3-Option for Earlier ACP
Scheme; Item No.8-Anomaly on Introduction of MACP Scheme;
40
and Item No.29 - Modification in MACP Scheme. In response to
the above submission, Union of India has filed additional written
submission referring to the decision in various meetings of the
Joint Committee on MACP held on various dates.
47.2
nd
Meeting of the Joint Committee dated 15.09.2010:- In
the 2
nd
Meeting of the Joint Committee held on 15.09.2010, it was
decided that organisations/cadres would be given the option to
choose either the ACP Scheme or the MACP Scheme. It was also
decided that individual options would not be permitted. Since the
ACP and MACP Scheme were fallback options for stagnating
employees, it was therefore decided that process of completing
cadre restructuring in a time bound manner would solve the
problem of stagnation. It was further decided that cadre structure
had to be reviewed periodically to harmonise the functional needs
of the organisation and career progression of employees. (Vide
copy of O.M. dated 10.02.2011).
48.3
rd
Meeting of the Joint Committee dated 15.03.2011:- In
the 3
rd
Meeting of the Joint Committee held on 15.03.2011, the
staff side reiterated their demand that the MACP Scheme should
be granted in the promotional hierarchy of posts rather than in the
grade pay hierarchy. The official side had suggested that the
41
Government was willing to consider a revision in the MACP
Scheme to the effect that organisations/cadres shall have the
option to choose either the ACP Scheme or the MACP Scheme.
But the staff side stated that such a dispensation would not be
practical and there was a need to explore other alternatives to
solve the issue. Therefore, it was agreed between the staff side
and the official side that there was no need to change the basic
structure of MACP Scheme, but there was a need to separately
examine those cases where MACP Scheme was less
advantageous than the ACP Scheme (Vide the Minutes of the 3
rd
Meeting of Joint Committee dated 15.03.2011). Pursuant to the
decision of the 3
rd
Meeting of Joint Committee, it was decided that
the official side would write to the Ministry of Railways, Defence,
Urban Development, Home Affairs and the Department of Posts
to forward information in respect of the specific categories of
employees where the MACP was less advantageous than the
erstwhile ACP Scheme. Accordingly, these
Ministries/Departments were requested to send specific cases
wherein, it was less advantageous for employees under MACP
Scheme as compared to ACP Scheme. It is stated that no
42
Ministry/Department other than Ministry of Urban Development
had responded. (Vide Copy of Minutes dated 15.03.2011)
49.Meeting of the Joint Committee dated 27.07.2012:- In the
meeting of the Joint Committee held on 27.07.2012, the official
side stated that it was not possible to give individual options to
the employees to opt for erstwhile ACP Scheme in preference to
MACP Scheme for availing the benefit of financial upgradation.
50.Letter dated 04.11.2013:- Pursuant to the Joint Committee
meeting held on 27.07.2012, a letter dated 04.11.2013 was sent
to the staff side making it clear that the solution lies in review of
cadre structure in a time bound manner with a view to mitigate
the problem of stagnation as the benefit of Modified Assurance
Career Progression Scheme have been granted as a fallback
option in the event of promotions not taking place in time. With
regard to letter dated 04.11.2013 which relates only to Postal
Department, it is clarified that in the Department of Posts, the
erstwhile ACP Scheme was not operational for postal employees.
These employees were covered under Time Bound One
Promotion (TBOP)/Biennial Cadre Review (BCR) Schemes. The
MACP Scheme for Central Government employees is a
continuation of ACP Scheme. Insofar as Department of Posts is
43
concerned, it was decided by the Department of Posts to adopt
MACP Scheme in respect of postal employees also w.e.f.
01.09.2008. Accordingly, O.M. No.4-7/(MACPS)/2009-PCC dated
18.09.2009 was issued by Department of Posts to clarify that
TBOP/BCR Schemes stand discontinued w.e.f. 01.09.2008
consequent upon introduction of MACPS to postal employees
w.e.f. 01.09.2008. The O.M. dated 1-20/2008-PCC dated
04.11.2013 was issued to regulate the fixation of pay in respect of
postal employees during the period 01.01.2006 to 31.08.2008 i.e.
before the switch over to MACPS took place. It is stated that the
O.M. dated 04.11.2013 was only in respect of postal employees
governed under TBOP/BCR and does not relate to Central
Government employees who were covered under erstwhile ACP
Scheme. Therefore, this O.M. has no bearing on the issue in the
said SLP pending before Hon’ble Supreme Court of India.
51.The ACP Scheme which is now superseded by MACP
Scheme is a matter of government policy. Interference with the
recommendations of the expert body like Pay Commission and its
recommendations for the MACP, would have serious impact on
the public exchequer. The recommendations of the Pay
Commission for MACP Scheme has been accepted by the
44
Government and implemented. There is nothing to show that the
Scheme is arbitrary or unjust warranting interference. Without
considering the advantages in the MACP Scheme, the High
Courts erred in interfering with the government’s policy in
accepting the recommendations of the Sixth Central Pay
Commission by simply placing reliance upon Raj Pal’s case. The
impugned orders cannot be sustained and are liable to be set
aside.
52.In the result, all the impugned orders in these batch of
appeals arising out of SLP(C) No.21803 of 2014, SLP(C)
No.22181 of 2014, SLP(C) No.23335 of 2014, SLP(C) No.23333
of 2014, SLP(C) No.18227 of 2015, SLP(C) No.31125 of 2016
and SLP(C) Diary No.6042 of 2017 are set aside and the appeals
preferred by the Union of India are allowed. Consequently,
appeal arising out of SLP(C)No.33706 of 2016 is disposed of. No
costs.
53.However, as pointed out earlier in para Nos. (47), (48) and
(49), since certain anomalies on implementation of the MACP
Scheme have been brought to the notice of the Joint Committee
in the various meetings of the Joint Committee, Union of India
45
and DoP&T to consider the same as they deem it appropriate and
take a decision in accordance with law.
54.We record our appreciation for the valuable assistance
rendered by Mr. Jaideep Gupta, learned amicus assisted by
learned counsel Mr. Kunal Chatterjee.
..…………………….J.
[R. BANUMATHI]
..…………………….J.
[A.S. BOPANNA]
..……………………….J.
[HRISHIKESH ROY]
New Delhi;
March 05, 2020.
46
Legal Notes
Add a Note....