SH. PRABHAKAR RAO THANIKONDA & ORS. vs EXPORT INSPECTION COUNCIL & ORS.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 02.11.2023
Judgment pronounced on: 07.11.2023
+ LPA 419/2023, CM APPL. 23412/2023 & CM APPL. 23413/2023
SH. PRABHAKAR RAO THANIKONDA & ORS ….. Appellants
versus
EXPORT INSPECTION COUNCIL & ORS …. Respondent
Advocates who appeared in this case:
For the Appellants : Mr. Parveen Kumar, Advocate
For the Respondent : Mr. L.R. Khatana, Advocate for R-1 to R-4.
Mr. Neeraj, SPC with Mr. Vedansh and Mr. Sahaj Garg, Advocates for UOI.
CORAM:
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
TUSHAR RAO GEDELA, J.
1. This is an appeal under Clause X of Letters Patent Act, 1866 assailing the impugned order dated 05.04.2023 passed by the learned Single Judge in W.P.(C) No.13777/2021 whereby the prayer seeking grant of ACP/MACP at higher Grade Pay from earlier date on the ground that the posts of Junior Scientific Assistant (hereinafter referred to as JSA) and Technical Officer (hereinafter referred to as TO) were merged, was rejected.
2. The prayers as sought by the appellants in their writ petitions before the learned Single Judge are as under:-
a) quash the impugned decision dt. 25.05.2021 [ANNEXURE P-1];
b) grant ACP in GRADE PAY 5400 PB-3, CORRESPONDING PAY BAND 15600-39100 w.e.f. 01.01.2006 to all Petitioners;
c) grant 2nd MACP w.e.f. 01.09.2008 in GRADE PAY 6600 IN PB-3, CORRESSPONDING PAY BAND 15600-39100, on 01.09.2008, applicability date of MACP, to Petitioner no. 2 and 3 on account of serving more than required 20 years in direct entry grade of 4200;
d) grant 2nd MACP w.e.f. 12.12.2008 in GRADE PAY 6600 IN PB-3, CORRESSPONDING PAY BAND 15600-39100 to Petitioner no. 1 on account completing 20 years on 12.12.2018 in direct entry grade of 4200;
e) grant 2nd MACP w.e.f. 05.12.2009 in GRADE PAY 6600 IN PB-3, CORRESSPONDING PAY BAND 15600-39100 to Petitioner no. 4 on account completing 20 years on 05.12.2019 in direct entry grade of 4200;
f) grant Petitioner no. 2 & 3, 3rd MACP in GRADE PAY 7600 IN PB-3, CORRESSPONDING PAY BAND 15600-39100 on 07.10.2015/31.10.2015 on completion of 30 years against the required 30 years to be counted from the direct entry grade of 4200;
g) Grant Petitioner no. l, 3rd MACP in GRADE PAY 7600 IN PB-3, CORRESSPONDING PAY BAND 15600-39100, LEVEL-12 on l2.12.2018 on completion of 30 years against the required 30 years to be counted from the direct entry grade of 4200.
h) to recalculate all service/retirements benefits considering the ACP and MACP entitlement as prayed hereinabove;
i) grant 12 % interest on the payable benefit from the payable date;
j) grant exemplary cost of litigation against each respondents and in favour of the each petitioners, for their malafide and forcing the petitioners in unwarranted litigation;
k) pass any such further or other order(s) as this Honble Court may deem fit and proper in the facts and circumstances of the case.
3. The facts as noted by the learned Single Judge in the impugned order, shorn of all unnecessary details and germane to the dispute, are as under:-
(a) For development of export trade through Quality Control and Inspection and for matters connected thereto, the Export (Quality Control and Inspection) Act, 1963 (hereinafter referred to as 1963 Act) was enacted and under Section 3 of the said Act, EIC was set up as a Body Corporate. Under Section 7 of the 1963 Act, in order to provide the ground machinery for quality control and inspection, Central Government established five Export Inspection Agencies (hereinafter referred to as EIAs) in Delhi, Mumbai, Kochi, Kolkata and Chennai, which function under the administrative control of the EIC.
(b) Petitioners were appointed in the EIAs on different dates as JSAs in the pay scale of Rs.1400-2600 (under 4th CPC) and the relevant details are as follows:-
S. N.
(1)
Name
(2)
Date of joining and post (Group)(3)
Corresponding 5th Pay Commission (4)
Corresponding Pay Band and Grade as per 6th Pay Commission(5)
1
PRABHAKARA RAO THANIKONDA
12.12.1998
J.S.A. I
5000-8000
9300-34800
PB-2 GP:4200
2
PRAKASH KUMAR
07.10.1985
J.S.A. I
5000-8000
9300-34800
PB-2 GP:4200
3
RAM KUMAR GUPTA
31.10.1985
J.S.A. I
5000-8000
9300-34800
PB-2 GP:4200
4
MS. UJJWALA KR. WADKE
05.12.1989
J.S.A. I
5000-8000
9300-34800
PB-2 GP:4200
(c) Petitioners No.1 and 2 were placed in the revised pay scale of Rs.5000-8000 under the 5th CPC, by order dated 03.03.1998 w.e.f. 01.01.1996, while Petitioner No.3 was granted the benefit vide order dated 01.10.1997 and Petitioner No.4 vide order dated 01.01.1996.
(d) Government of India, vide DoPT O.M. dated 09.08.1999 notified the Assured Career Progression Scheme (ACP) for Central Government Civilian employees in all Ministries/Departments. ACP Scheme provides two financial upgradations, on completion of 12 and 24 years service, in the Grade Pay in the next promotional hierarchy, subject to fulfillment of requisite norms including benchmarks for promotion to the said posts. First financial upgradation was granted to the Petitioners under the ACP Scheme as follows :
S. N.
(1)
Name
(2)
Date of ACP/w.e.f. (3)
Pay Scale as per 5th Pay Commission (4)
Corresponding Pay Band and Grade as per 6th Pay Commission(5)
1
PRABHAKARA RAO THANIKONDA
01.04.2004
/01.12.2000
5500-175-9000
9300-34800
PB-2 GP4200
2
PRAKASH KUMAR
17.10.2003/
09.08.1999
5500-175-9000
9300-34800
PB-2 GP4200
3
RAM KUMAR GUPTA
17.11.2003/
09.08.1999
5500-175-9000
9300-34800
PB-2 GP4200
4
MS. UJJWALA KR. WADKE
01.04.2004
5500-175-9000
9300-34800
PB-2 GP4200
(e) Petitioners were thereafter promoted as TOs from the following dates in the pay scale of Rs. 5500-9000, which was the same scale as granted to them by way of first financial upgradation under the ACP Scheme :-
S. N.
(1)
Name
(2)
Date of Promotion to post of Technical Officer / Years for Promotion (3)
Pay Scale as per 5th Pay Commission (4)
Corresponding Pay Band and Grade as per 6th Pay Commission(5)
1
PRABHAKARA RAO THANIKONDA
30.10.2002
(B)/13 Years
5500-175-9000
9300-34800
PB-2 GP4200
2
PRAKASH KUMAR
11.11.2002
(B)/17 Years
5500-175-9000
9300-34800
PB-2 GP4200
3
RAM KUMAR GUPTA
01.11.2002
(B)/17 Years
5500-9000
9300-34800
PB-2 GP4200
4
MS. UJJWALA KR. WADKE
13.11.2002
(B)/12 Years
5500-9000
9300-34800
PB-2 GP4200
(f) Petitioners No. 1 to 4 were promoted to the post of Assistant Director (AD) from the post of TO and placed in the pre-revised scale Rs.8000-13500 (revised Pay Band Rs.15600- 39100 with Grade Pay Rs.5400/-) as under:-
S. N.
(1)
Name
(2)
Date of 2nd Promotion to Asstt. Director / Total Service (3)
Pay Scale as per 5th Pay Commission (4)
Corresponding Pay Band and Grade as per 6th Pay Commission(5)
1
PRABHAKARA RAO THANIKONDA
04.03.2008/ 19years
8000-13500
15600-39100
PB-3 GP-5400
2
PRAKASH KUMAR
05.03.2010/ 24 years 7 m
8000-13500
15600-39100
PB-3 GP-5400
3
RAM KUMAR GUPTA
07.01.2008 /22 years
8000-13500
15600-39100
PB-3 GP-5400
4
MS. UJJWALA KR. WADKE
24.03.2008
18 years
8000-13500
15600-39100
PB-3 GP-5400
(g) DoPT notified the Modified Assured Career Progression Scheme (MACP Scheme) vide O.M. dated 19.05.2009 effective from 01.09.2008, under which an employee is entitled to three financial upgradations on completion of 10, 20 and 30 years service, respectively.
(h) As per 6th CPC recommendations, posts in the pay scales Rs.5000-8000 and Rs.5500-9000 were to be merged with the post in pay scale Rs.6500-10500 (revised PB-2 with Grade Pay of Rs.4200/-). The hierarchy of posts in EIAs is JSA in pay scale of Rs.5000-8000 and TO in pay scale of Rs.5500-9000 and thus by virtue of para 5 of Annexure-I of MACP Scheme read with Clarificatory O.M. dated 09.09.2010 as well as Serial No.27(iii) of FAQ on MACP in DoPT O.M. dated 01.04.2011, promotion/upgradations in the pay scale of Rs.5500-9000 in the past have to be ignored for purpose of granting financial upgradations under the MACP Scheme. However, EIC did not act in consonance with these O.Ms, leading to grant of financial upgradations in lower Grade Pay. As an illustration, Petitioner No.1 was granted pay scale of Rs.5500-9000 under 1st ACP on 12.12.2000 on completion of 12 years of service and was promoted as TO in the same pay scale on 01.11.2002. On account of merger of the pay scales Rs.5000-8000 and Rs.5500- 9000 into Rs.6500-10500, Petitioner No. 1 is to be treated as having been placed in PB-2 with Grade Pay of Rs.4200/- and was, therefore, entitled for pay fixation in PB-3 with Grade Pay of Rs.5400/-, on completion of 18 years of service till his promotion on 04.03.2008 and thereafter in Grade Pay of Rs.6600/-, on completion of 20 years of service from the initial date of appointment, which has not been done.
(i) Aggrieved by non-implementation of ACP/MACP Schemes in accordance with the provisions thereof, Petitioner No. 1 made representations dated 16.06.2010, 10.01.2013, 29.09.2018, however, the grievance was not redressed, compelling the Petitioners to approach this Court.
4. Mr. Parveen Kumar, learned counsel appearing on behalf of appellants submitted that the impugned judgement dated 05.04.2023 passed by the learned Single Judge as well as the decision dated 25.05.2021 rendered by the respondent is wholly unsustainable in law and on facts. According to Mr. Kumar, the Appellant nos. 1 to 4 are eligible for 1st ACP in the Grade Pay of Rs.5400/- in PB-3 on completion of 12 years, which was granted on completion of 16-20 years. Appellant No. 1 is eligible for 2nd MACP in Grade Pay of Rs.6600/- in PB-3 on completion of 20 years of service on 12.12.2008. Appellant Nos. 2 and 3 are eligible for 2nd MACP in Grade Pay of Rs.6600/- in PB-3 on completion of 20 years counted from direct entry Grade as on 01.09.2008, whereas they were granted the benefit on completion of 22 years. Appellant Nos. 2 and 3 are eligible for 3rd MACP in Grade Pay of Rs.7600/- in PB-3 on 07.10.2015/31.10.2015 on completion of 30 years from the dates of their respective appointments in the direct entry Grade. Appellant No. 4 is eligible for 2nd MACP in Grade Pay of Rs. 6600/- in PB-3 on 05.12.2009, on completion of 20 years from the date of appointment.
5. It was submitted on behalf of the appellants that law on grant of benefits under the ACP and MACP Schemes is now settled by the Supreme Court in Union of India and Others v. M.V. Mohanan Nair, reported in (2020) 5 SCC 421 and Union of India v. R.K. Sharma and Others, reported in (2021) 5 SCC 579 wherein it is held that ACP is to be granted in the next Grade Pay in promotional hierarchy on completion of 12 and 24 years in the same Grade Pay and MACP is applicable from 01.09.2008 on completion of 10/20/30 years counted from direct entry Grade in the next Grade Pay on completion of 10 years continuously in the same Grade Pay. Learned counsel submits that the appellants have not been upgraded in accordance with the Schemes and have suffered a huge monetary loss on this count, which will or has ultimately translated in reduction in their retiral benefits also.
6. That, apart from the aforesaid, Mr. Kumar, learned counsel also invites attention of this Court to the MACP Scheme and the conditions under which the same would be applicable. The aforesaid arguments of Mr. Kumar are more or less similar to the ones raised before the learned Single Judge.
7. Per contra, Mr. L.R. Khatana, learned counsel appearing for the respondent Nos.1 to 4 submitted that all benefits of financial upgradation due to the Appellants under ACP/MACP Schemes have been granted to the Appellants and they have no cause for grievance. He further submits that the Appellant Nos. 2 and 3 have been compulsorily retired from service under FR 56(j) while Appellant No. 4 has taken voluntary retirement.
8. Learned counsel submits that none of them made any representation to Respondent Nos. 1 to 4 and had directly approached this Court by way of the writ petition, and it was only the Appellant No. 1 who had submitted representations, which were rejected by the impugned order as his claim was misconceived.
9. It was contended by Mr. Khatana that the Appellants claim ACP/MACP benefits on a misplaced ground of merger of the post of JSA and TO premised on the recommendations of the 6th CPC, whereas, in fact in the EIC and EIAs, these posts have neither been merged nor upgraded, which is clearly reflected from the existing Recruitment Rules. Drawing the attention of the Court to a tabular representation filed by Respondent Nos. 1 to 4, it was urged that all the Appellants were granted 1st ACP on completion of 12 years of service from their initial dates of appointments. Subsequently, they were promoted as TOs in pay scale Rs.5500-9000, which was the same scale in which 1st ACP financial upgradation was granted. He further submits that thereafter, appellants were promoted to the post of Assistant Director (hereinafter referred to as AD) in the pay scale Rs.8000-13500, revised to PB-3 with Grade Pay of Rs.5400/- under 6th CPC and placed in Level-10 under 7th CPC.
10. Learned counsel argued that since the Appellants have received benefits of 1st financial upgradation under ACP and thereafter promotion to the post of AD ignoring the promotion to the post of TO, which was in the same scale as 1st ACP, the appellants were granted 3rd MACP on completion of 30 years from the entry Grade and no infirmity can be found with the action of the answering respondents.
11. That apart, Mr. Khatana pertinently referred to Clause VIII of the conditions of MACP Scheme to the O.M. dated 19.05.2009 issued by the DOPT to submit that according to the said clause, the promotions earned in the same Grade Pay in the promotional hierarchy as per the Recruitment Rules shall be counted for the purposes of MACP Scheme.
12. He also stressed on the fact that the respondent No.1 is an Autonomous Body established under Section 3 of the Export (Quality Control and Inspection) Act, 1963 having its rules, regulations and Recruitment Rules unlike the Central or State Government authority. Learned counsel submits that being an autonomous organization, it was open to the respondents to adopt or not adopt the 6th CPC recommendations, including the merger of posts. In support of the said contention, Mr. Khatana, learned counsel drew our attention to para 3 of the counter affidavit.
13. According to Mr. Khatana, the 1st financial upgradation in the next higher pay scale of the post of TO under the ACP Scheme was granted to the appellants after 12 years of their services as JSA. Since the appellants were thereafter promoted as TO and were already drawing the financial upgraded pay scale of TO, no financial upgradation at the time of promotion were needed to be granted. The subsequent promotion to the post of AD and the stagnation at such post earned the appellants the 3rd MACP financial upgradation after 30 years of service. On that basis, he submits that the appellants are not entitled to the 2nd financial upgradation under the MACP Scheme and their pay fixation was correctly carried out. He prays that the present appeal be dismissed.
ANALYSIS AND CONCLUSION:
14. We have considered the rival submissions of the parties and have also given our anxious considerations to the ACP/MACP Scheme and other relevant documents placed on record. We have also carefully perused the detailed judgment passed by the learned Single Judge assailed in the present appeal.
15. In order to appreciate the facts arising in the present case and the submissions based thereon, it would be appropriate to extract Para 20 of the impugned order which is as under:
20. For the sake of completeness and better clarity, I may refer to a tabular statement, filed by Respondents No.1 to 4 along with the counter affidavit, demonstrating the promotions and financial benefits under the ACP/MACP Schemes, granted to the Petitioners from time to time, as follows :-
PRABHAKAR RAO (Petitioner No.1)
Dates
Particulars
12-12-1988
Joined as JSA at Pilot Test House, Mumbai in the pay scale of Rs. 1400-40-1600-50-2300-EB-60-2600/-
03-03-1998
Consequent upon implementation of 5th CPC, pay scale was revised to Rs. 5000-150-8000 and pay fixed at Rs.5300 w.e.f. 01-01-1996.
12-12-2000
First ACP granted in the Pay scale of Rs. 5500-175-9000, pay fixed at Rs. 6375 w.e.f. 12-12-2000 as per Office Order dated 05-01-2004.
01-11-2002
Promoted to the post of Technical Officer in the pay scale of Rs.5500-175-9000/- and pay fixed at Rs. 6550/- per month w.e.f. 01-11-2002.
04.03.2008
Promoted to the post of Assistant Director in pay scale of Rs. 8000-275-13500 vide EIC order dated 29-02-2008 and pay fixed at Rs. 8000/-.
22-10-2008
Consequent on the recommendation of the 6th CPC, vide EIC O.M. dated 22-10-2008, his pay has been fixed in the Pay Band PB3 Rs. 15600-39100+GP Rs. 5400 w.e.f. 04-03-2008.
01-09-2017
On implementation of 7th CPC, Pay fixed at Rs.67000/- in Level 10 w.e.f. 01-01-2016
04-03-2018
3rd MACP granted in Level 11 (Pay Scale 67700-208700 as per 7th CPC) w.e.f. 04-03-2018 vide order dated 06-04-2022.
04-05-2022
Promoted to the post of Deputy Director in the Pay Matrix Level 11 (Rs. 67700-208700) w.e.f. 04-05-2022 vide order dated 07-04-2022
PRAKASH KUMAR (Petitioner No.2)
Dates
Particulars
07-10-1985
Joined as JSA at EIA-Mumbai in the pay scale of Rs. 1400-40-1600-50-2300-EB-60-2600/-
03-03-1998
Consequent upon implementation of 5th CPC, pay scale revised to Rs. 5000-150-8000 and pay fixed at Rs.5750 w.e.f. 01-01-1996.
09-08-1999
1st ACP was granted in the Pay Scale of Rs. 5500-9000 and pay was fixed at Rs. 6375/-
11-11-2002
Promoted to the post of Technical Officer, in the pay scale of Rs.5500-175-9000/- and pay fixed at Rs. 7075/-
01-07-2007
Pay fixed in PB-2 Rs.9300-34800+ GP 4200 at Rs.14570+ GP 4200/- as per 6th CPC
05-03-2010
Promoted to the post of Assistant Director in PB3 Rs. 15600-39100 + GP 5400 vide EIC order dated 26-02-2010 and pay fixed at Rs. 21860/- w.e.f. 08-03-2010
07-10-2015
3rd MACP granted in PB3 Rs.15600-39100 with Grade Pay of Rs.6600/-
01-09-2017
On implementation of 7th CPC, Pay has been fixed in Level 10 w.e.f. 01-01-2016
15.02.2018
Compulsory retired from his services as per the order no. EUC/D(Q/C)148/FR56(J)/A/2017-18/5310 dated 15.02.2018
RAM KUMAR GUPTA (Petitioner No.3)
Dates
Particulars
31.10.1985
Joined as JSA on 31 Oct 1985 at EIA-Mumbai in the pay scale of Rs. 425-15-500-EB-15-560-20-700-EB-20-800
01.10.1986
Consequent upon implementation of 4th CPC, pay scale revised to Rs. 1400-40-1600-50-2300-EB-60-2600 and Pay fixed at Rs.1400 w.e.f. 01-01-1986.
01.10.1997
Consequent upon implementation of 5th CPC, pay scale revised to Rs. 5000-1500-8000 and Pay fixed at Rs.5750/- w.e.f. 01-01-1996.
01.11.2002
Promoted to the post of Technical Officer, in the pay scale of Rs.5500-175-9000/- and pay fixed at Rs. 7075/- per month w.e.f. 01-11-2002.
05.01.2004
First ACP granted in the Pay scale of Rs. 5500-175-9000, pay fixed at Rs.6550/- w.e.f. 01-10-1999 as per office order dated 05-01-2004.
02.01.2008
Promoted to the post of Assistant Director in pay scale of Rs. 8000-275-13500 vide EIC order dated 2-01-2008 and pay fixed at Rs. 8275/- w.e.f. 07-01-2008.
01.07.2008
Consequent on the recommendation of the 6th pay commission, vide EIC O.M. dated 22-10-2008, his pay was fixed at Rs. 21870/- in the Pay Band PB3 Rs. 15600-39100+GP Rs. 5400 w.e.f. 01-07-2008.
26.12.2016
3rd MACP granted in the Pay Band PB3 Rs. 15600-39100 + GP Rs 6600/-, pay fixed at Rs. 29810/- w.e.f. 01-07-2016
27.07.2017
Consequent on the recommendation of the 7th pay commission, vide EIC O.M. dated 27-07-2017, pay fixed at Rs. 76200/- in the Pay Level 11 w.e.f. 01-01-2016.
31.07.2018
Retired under Rule 56 (j) on 31st July 2018
UJJWALA WADKE (Petitioner No.4)
Dates
Particulars
05-12-1989
Smt. Ujwala K Wadke, JSA was appointed in the post of JSA Pay Scale Rs. 1400-40-1600-50-2300-EB-60-2600- (PB Rs. 1400/- at Pilot Test House-Mumbai vide Appointment letter dated 08-11-1989
01.1.1996
Consequent upon implementation of 5th Pay Commission the scale of pay has been revised to Rs. 5000-150-8000 and pay was fixed at Rs.5300/- w.e.f. 01-01-1996.
05-12-2001
First ACP granted in the Pay scale of Rs. 5500-175-9000, pay fixed at Rs.6375.
13-11-2002
Appointed on promotion to the post of Technical Officer in Pay Scale Rs. 5500-175-9000/- and pay fixed at Rs.6375/-
29-02-2008
Promoted to the post of Assistant Director in pay scale of Rs. 8000-275-13500/-
22-12-2008
Consequent on the acceptance of 6th Pay commission, the scale has been revised in Pay Band PB-3 Rs. 15600-39100 + GP Rs. 5400 w.e.f. 01-01-2006 as per EIC order dated 22-12-2008.
01-09-2017
On implementation of 7th CPC, Pay fixed at Level 10, Rs. 67000/- w.e.f. 01-01-2016
03-07-2018
Voluntary Retired from service as Assistant Director (T).
Although the learned counsel for the appellants had raised some objections on the aforesaid table, yet had not addressed any argument or produced any counter document to effectively dispute the facts contained therein. We have carefully perused the relevant dates on which each of the appellants were initially appointed, the dates of their respective promotions, and the relevant dates when they were granted benefit of ACP and MACP Scheme as and when the same fell due and in terms of their eligibility.
16. On a judicial examination of the aforesaid, we find that admittedly, the appellants had indeed been granted 1st financial upgradation under the ACP Scheme after the lapse of 12 years in accordance with the conditions therein. The appellants have no quarrel in respect of such financial upgradation.
17. The appellants are aggrieved about non-grant of 2nd financial upgradation under the MACP Scheme on the ground that despite being eligible, the appellants were denied the 2nd financial upgradation under the MACPS even after the passage of 20 years of regular service. This grievance was predicated on the basis that the promotion from JSA to TO, so far as the MACPS is concerned, shall not render them ineligible for the 2nd financial upgradation as the promotions shall not be taken into consideration, by referring to Question 27(iii) of the FAQs on the MACP Scheme.
18. It would be relevant to extract Question 27 (iii) of the FAQs hereunder:
Department of Personnel & Training
Establishment D Section
Frequently Asked Questions (FAQs) on Modified Assured Career Progression Scheme (MACPS)
SI.No
Doubts
Clarification
27
In a hypothetical situation cadre hierarchy was as follows:
Rs. 5000-8000 (revised GP 4200)
Rs. 5500-9000 (revised GP 4200)
Rs. 6500-10500 (revised GP 4600)
Rs. 7450-11500 (revised GP 4600)
Rs. 10000-15200 (revised GP 6600)
In terms of clarification given on point of doubt no.3 issued vide DOPTs O.M. No. 35034/3/2008-Estt.(D) dated 9.9.2010, the benefits of ACPS would be applicable in the new pay structure adopted w.e.f. 1.1.2006 in the promotional hierarchy.
(i)
xxx
(i) xxx
(ii)
xxx
(ii) xxx
(iii)
If a Government servant recruited in the pre-revised pay scale of Rs. 5000-8000 has been promoted in the promotional hierarchy in the pre-revised pay scale of Rs. 5500-9000 prior to 1.1.2006 (and he has put in 14 years of regular service) then would there be any claims for financial upgradation under ACPS*
(iii): The pre-revised pay scales Rs. 5000-8000 & Rs. 5500-9000 have been merged and placed in PB-2 with grade pays of Rs. 4200 w.e.f. 1.1.2006. Hence, the promotion would be ignored as he has completed his 12 years of regular service and the benefit of 1st ACP would accordingly be allowed in the promotional hierarchy i.e. in the grade pay of Rs. 4600 w.e.f. 01.01.2006.
*Bold portion as contained in the original document.
The aforesaid argument is fallacious to say the least for the reason that the 1st financial upgradation to the pay scale of TO was indeed granted under the ACP Scheme at the time when the appellants were holding the post of JSA. Subsequently, when they were actually promoted to the post of TO, no financial upgradation could be given since they were already enjoying the pay scale of TO. As such, the argument on the basis of Question 27 (iii) of FAQs of MACPS for seeking entitlement to 2nd financial upgradation under MACPS is unsustainable.
19. Moreover, the appellants were promoted as AD subsequently and had stagnated at such post for the next 10 years completing their eligibility of 30 years for the purposes of 3rd financial upgradation under the MACP Scheme. As such, the 3rd financial upgradation under the MACPS also has been correctly granted to the appellants.
20. So far as the submission regarding non-grant of 2nd financial upgradation under the MACPS is concerned, the appellants obviously cannot be eligible for the same since they had indeed earned a promotion at the relevant time, which according to the conditions of MACPS, made them ineligible. This would be further clear from the observations recorded by the learned Single Judge in Para 21 of the impugned order. The same is extracted hereunder:
21. Having carefully perused the aforesaid statements, this Court does not find any anomaly in grant of financial upgradations to the Petitioners under ACP/MACP Schemes. Illustratively, the case of Petitioner No.1/Shri Prabhakara Rao Thanikonda can be examined in order to test the respective stands of the rival parties. Petitioner No.1 joined as JSA on 12.12.1988 in pay scale Rs.1400-2600. The pay scale was revised to Rs.5000-8000 w.e.f. 01.01.1996 under 5th CPC. First ACP upgradation was granted in the scale of Rs.5500-9000 w.e.f. 12.12.2000 on completion of 12 years regular service counted from 12.12.1988. He was promoted to the post of TO on 01.11.2002 and since the post carried the pay scale of Rs.5500-9000, there was no change in the pay scale. Petitioner No.1 was promoted to the next post of AD in the hierarchy w.e.f. 04.03.2008 in the scale of Rs.8000- 13500, which was revised to PB-3 (Rs.15600-39100) with Grade Pay of Rs.5400/- w.e.f. 04.03.2008 and finally fixed in Level-10 under 7th CPC w.e.f. 01.01.2016. Since the posts of JSA and TO were never merged by Respondents No.1 to 4, promotion to the post of AD was counted in the hierarchy of promotions and therefore, Petitioner No.1 was not entitled to 2nd MACP on completion of 20 years on 12.12.2008 and was granted 3rd MACP on completion of 30 years in 2018. On the same analogy, benefits as due to the other Petitioners have been correctly granted. Action of Respondents No. 1 to 4 is in consonance with the provisions of ACP/MACP Schemes and cannot be faulted.
21. The reliance of Mr. Kumar on the judgments of M.V. Mohanan Nair (supra) and R.K. Sharma and Others (supra) passed by the Honble Supreme Court does not assist the case of the appellants any further. In that, the said judgments lay down the ratio that so far as MACP Scheme is concerned, the entitlement of financial upgradation is limited to the next higher Grade Pay in the Pay Band and not the Grade Pay in the next higher promotional hierarchy. Mr. Kumar has no quarrel with the aforesaid proposition of law. The said proposition is not even a subject matter in issue in the present case and as such, the said judgments are not applicable.
22. Considering the above, we find no legal infirmity, illegality, both on facts or law in the impugned order and as such, the present appeal being devoid of all merits is dismissed, however, without any order as to costs.
23. Pending applications also stand disposed of.
(TUSHAR RAO GEDELA)
JUDGE
(SATISH CHANDRA SHARMA)
CHIEF JUSTICE
NOVEMBER 07, 2023/rl
LPA 419/2023 Page 1 of 17