Full Text
HIGH COURT OF DELHI
JUDGMENT
COMMISSIONER OF POLICE AND ORS .....Appellants
Through: Ms. Pratima N Lakra, CGSC with Mr. Shailendra Kumar
Mishra, Adv. with Mr. Ashok Kumar Sharma Delhi Police.
Through: Mr. Padma Kumar S., Mr. Gurpreet Singh, Advs.
HON'BLE MR. JUSTICE AMIT MAHAJAN
1. The present writ petition has been filed under Article 226 of the Constitution of India, assailing the order dated 11.02.2020 passed by the learned Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter ‘Tribunal’) in O.A. No. 2240/2014, whereby the learned Tribunal directed the Petitioners to re-determine, by a speaking order, the pay of the Respondent/Sh. Hira Lal as well as his entitlement to benefits under the Assured Career Progression (‘ACP’)/ Modified Assured Career Progression (‘MACP’) Schemes by adding the service rendered by him in the Ministry of Information & Broadcasting from 16.06.1989 to 31.07.1991, if not already done.
3. The quintessential facets governing the present dispute are that the Respondent was appointed as Engineering Assistant (‘EA’) in the Ministry of Information & Broadcasting and served in the said post from 16.06.1989 till 31.07.1991 in the pay scale of Rs.1400-2600.
4. On 01.08.1991, after submitting a technical resignation, the Respondent joined the Delhi Police as ASI (Radio Technician) in the pay scale of Rs. 1600-2660.
5. Subsequently, the pay scale of the post of Engineering Assistant in the Ministry of Information & Broadcasting was revised retrospectively w.e.f. 01.01.1986, to Rs. 2000-3200. Upon representation by the Respondent to Ministry of Information & Broadcasting, his pay in the said post was re-fixed at Rs. 2,120/- as on 01.06.1991, i.e., prior to his joining the Delhi Police and he was also paid arrears on the revised fixation.
6. Owing to the aforesaid retrospective revision, the Respondent sought pay protection with respect to the post he was working at in the Delhi Police, and made representations with respect to the same. Vide Order dated 16.03.1999, the Petitioners only granted him two annual increments in his present pay grade of Rs.1600-2660/- by taking into account the service of two years rendered by him the Ministry of Information & Broadcasting.
7. Aggrieved, the Respondent filed an O.A. No. 2481/2000, which was allowed vide order dated 18.10.2001 and it was observed that the Petitioner/Authority will have to protect the pay of the Respondent given to him in the revised and upgraded scale of pay of EA and the Petitioners should have proceeded to fix his pay in the pay grade of Rs. 1600-2600 taking into account his pay at Rs. 2,120/-. The relevant extract is reproduced as under: -
4. In order to get over the problem arising in this case for want of necessary clarification as to the rule which should find application, we have had occasion to take a look at the character & service Roll of the applicant produced by the learned counsel for the respondents for our perusal. We have come across the following entry in the aforesaid Roll: "Allowed to avail the benefit of past service rendered in Doordashan Centre from 16.6.1989 to 31.7.1991 as EA and the previous service Book accepted for all intents and purpose under 26(2) of CCS (Pension) Rules vide order NO. 16203 - 09/CR/BCE/CH dated 1.6.99."
5. From the above it is seen that the benefit of Rule 26(2) of CCS (Pension) Rules, 1972 has been fully extended to the applicant. Thus the technical resignation given by him at the time of entry in Delhi Police will not entail forfeiture of his past service as EA in the Ministry of Information & Broadcasting. This way the service rendered by the applicant in the Ministry of Information & Broadcasting has been kept alive for extending certain benefits to the applicant and that is why, in our view, the respondents might have allowed two annual increments to the applicant in his current pay scale of Rs. 1600 - 2660/-. While the same might look alright on the face of it, the issue regarding fixation of pay of the applicant as on 1.8.1991 (in Delhi Police) in keeping with the revised pay scale given to him as EA still remains to be decided.
6. After a proper and careful consideration of the matter we have concluded that the respondent authority will have to protect the pay of the applicant given to him in the revised scale of pay of EA. In the said revised scale, the applicant's pay was fixed at Rs. 2120/- as on 1.6.1991 and this takes into account two annual increments drawn by him in the Ministry of Information and Broadcasting. As on 1.8.1991 his pay was the same, namely, Rs. 2120/-. To be just and fair to the applicant, the respondents should have proceeded to fix the applicant's pay in the pay grade of Rs. 1600 - 2660/-, which is the applicant's present pay grade, by taking into account the figure of Rs. 2120/-. While fixing the pay of the applicant as above, there will be no need to grant two annual increments which are already included in the aforesaid pay of Rs. 2120/- which became due to him as EA w.e.f. 1.6.1991. In the circumstances, we direct the respondents to fix the pay of the applicant as above as expeditiously as possible and in any event within a period of two months from the date of receipt of a copy of this order. They will grant all consequential benefits also to the applicant.”
8. In lieu of the same, a fresh pay fixation order was issued on 20.12.2001. The same fixed the pay scale of the Respondent as Rs. 2,120/- under: - “Consequent upon the decision pronounced by the Hon'ble CAT in O.A. No. 2481/2000 dated 10.10.2001. The pay in r/o SI/RT Hira Lai No. 2690/D is hereby fixed w.e.f. 1.8.91 in the pay scale of Rs. 1600-50-2300-55-2660. Rs. 2100+20 PP wef……”
9. In the interim, the ACP Scheme was introduced, envisaging 2 Financial Upgradations on completion of 12 years and 24 years of regular service, and the Respondent was granted 1st upgradation after completion of 12 years of service w.e.f. 01.08.2003, i.e. counting his length of service from 01.08.1991 and excluding the previous years of service.
10. The ACP Scheme was superseded by the MACP Scheme which envisaged 3 Financial Upgradations on competition of 10, 20 and 30 years of service. The Respondent received 2nd Upgradation after completion of 20 years of service w.e.f. 01.08.2011 i.e. again counting his length of service from 01.08.1991 and excluding the previous years of service.
11. It is alleged that despite several representations to the Department, no response was received and thus, the Respondent was constrained to challenge the said action before the learned Tribunal. Vide the impugned order dated 11.02.2020, the learned Tribunal allowed the O.A. in the following terms: -
12. In lieu thereof, the Deputy Commissioner of Police has passed another Order dated 09.04.2020, holding him eligible for 3rd upgradation as per MACP only on 01.08.2021 by counting 30 years from 01.08.1991 i.e. the dated he joined Delhi Police.
13. Hence, a Contempt Petition bearing C.P. No. 190 of 2020 was filed by the Respondent alleging non-compliance of the directions passed in the impugned order.
14. Learned counsel for the Petitioners submits that the learned Tribunal erred in directing reconsideration of ACP/MACP benefits, as the Respondent joined the Delhi Police in a higher pay scale of Rs. 1600-2660 than his previous post which had the pay scale of Rs. 1400-2600, and therefore, the past service rendered cannot be counted for grant of ACP/MACP benefits.
15. It is contended that the learned Tribunal failed to appreciate the law laid down in P.S. Rajput v. Union of India and Ors. 2019 SCC OnLine Del 7081 wherein it has been held that an employee who enters service in a higher pay grade by direct recruitment is not entitled to MACP benefits by counting service rendered in the lower grade.
13. Hence, it is prayed that the impugned order is liable to be setaside.
15. Per contra, learned counsel for the Respondent submits that the reliance placed on P.S. Rajput (supra) is wholly misconceived as the Respondent’s case is not one of movement from a lower to a higher pay scale, but one where the pay scale of the earlier post was revised and upgraded retrospectively to Rs. 2000-2300 by virtue Office Order dated 14.11.1996, resulting in his last drawn pay being higher than the entry pay in Delhi Police, thereby mandating pay protection and thus, his past service ought to have been counted for grant of ACP/MACP benefits.
16. It is further submitted that the issue of pay protection and continuity of service stands conclusively settled by the order dated 18.10.2001, which has attained finality, and the Pay drawn is same in both the posts as Rs. 2,120/-.
17. It is further submitted that in blatant disregard to the directions passed by the learned Tribunal, the Petitioner Authority has passed the Order dated 09.04.2020, without including his past years of service rendered in Doordarshan.
18. Hence, it is prayed that the present petition is devoid of any merit and be dismissed.
18. Submissions heard and the record along with the written submissions as well as the judgments have been perused. Analysis
19. At the outset, it must be noted that the Respondent’s entitlement to protection of past service and pay fixation stood conclusively determined by the Tribunal in its order dated 18.10.2001 passed in O.A. No. 2481/2000. The Tribunal in 2001 specifically rejected the Petitioners’ approach of granting merely two advance increments and held that the Respondent’s pay, as fixed in the revised scale of Engineering Assistant pursuant to retrospective revision, was required to be protected upon his appointment in Delhi Police.
20. Subsequently, even the order dated 20.12.2001 fixed the pay of the Respondent in the post ASI was re-fixed at Rs. 2,120/- w.e.f. 1.08.1991 and his previous pay was already revised as Rs. 2,120/-.
21. Hence, the only limited issue before this Court is whether the learned Tribunal had erred in directing the Petitioners to consider the past period of service of the Respondent in Doordarshan to consider his entitlement for ACP/MACP benefits.
22. To address the same, it would be imperative to understand para 9 of Annexure 1 of the MACPS which reads as under: -
23. Further, FAQ – Point 13 issued by the DoPT in regard to the implementation of the MACP and consideration of past service for grant of MACP benefits reads as under: -
13. Whether the past continuous regular service in another Govt. Deptt. in a post carrying same grade pay prior to regular appointment in a new Deptt. without a break shall be counted towards qualifying regular service for the purpose of MACPS. Yes (Para 9 of MACPS)
24. It becomes luminously clear that the past service rendered can be counted for grant of MACP benefits if the conditions therein stand satisfied.
25. Admittedly in the present case, the first condition under Paragraph 9, namely continuity of service, stands fulfilled. It is an admitted position that the respondent tendered a technical resignation while moving from the Ministry of Information and Broadcasting to the Delhi Police and, by virtue of Rule 26(2) of the CCS (Pension) Rules, 1972, his past service was not forfeited.
26. As regards the second condition, the same also stands fulfilled. It has been contented that the Respondent had joined Delhi Police services in a higher pay grade and thus his past service cannot be counted. The same, in the present case, seems untenable as admittedly the pay and grade of the Respondent were retrospectively revised and duly protected by the department i.e. his previous grade pay as EA was also Rs. 2,120/- and subsequently, in the present services as ASI his pay was also re-fixed as Rs. 2,120/-. Once such retrospective revision and pay protection has been granted, the movement cannot be treated as one from a lower grade to a higher grade, in substance. The assessment of eligibility under MACP cannot be divorced from the actual pay structure as finally settled by the employer itself. Further, considering the pay before revision only to state that his he has moved from a lower grade to a higher grade would amount to declining the Respondent the benefit of such retrospective revision due to which his Grade Pay remained same as Rs. 2,120/-.
27. Even otherwise, as noted by the learned Tribunal, once the Respondent’s past service has been protected under Rule 26(2) of the CCS (Pension) Rules “for all intents and purposes”, the same can be reckoned for the purposes of financial progression under the ACP/MACP Scheme.
28. The reliance on the case of P.S. Rajput (supra) is distinguishable as the ratio of the said judgment relates to a case where the Petitioner was appointed as a Constable on 02.01.1985 in pay scale of 210-4-250-EB-5-270 and was subsequently appointed as a Head Constable on 02.09.1997 through the process of direct recruitment and thus, came into a higher scale of 975-25-1150-EB-
1660. Hence, his past services rendered in the post of Constable were not counted since he had moved from a lower pay scale to a higher pay scale.
29. The present case stands on an entirely different footing as in the same, due to retrospective revision, the Petitioner’s grade pay of Rs. 2120/- remained the same and has been protected.
30. A similar issue arose for consideration before a coordinate bench of this Court in the case of Anil Kumar v. Jawaharlal Nehru University, Neutral Citation Number: 2023:DHC:1994, wherein the Petitioner had urged that since his core pay scale in the previous post of Junior Assistant-cum-Typist was restored/revised to the Grade Pay of Rs.2800/- which was the same grade pay of his new post of Semi Professional Assistant, his past service ought to be counted for the purposes of financial upgradation under the MACP. While allowing the claim of the Petitioner therein, the Coordinate Bench observed as under: -
26. Hence, once past services of similarly situated employees have been considered for financial upgradation, the same benefit ought to be extended to the Respondent as well.
27. In view of the aforesaid discussion, this Court finds no infirmity in the impugned order dated 11.02.2020 and the past service of the Respondent rendered in Doordarshan from 16.06.1989 to 31.07.1991 has to be considered by the Petitioner for determining benefits under the ACP/MACP Scheme.
28. Thus, the Petitioner is directed to pass consequential order within 3 months from the date. The Respondent shall also be entitled to interest at GPF Rates on the arrears from the date it was due i.e. 11.02.2020 (date of the impugned order) till the date of payment.
29. The writ petition is dismissed, along with all pending application(s), if any. AMIT MAHAJAN, J. ANIL KSHETARPAL, J. FEBRUARY 20, 2026 jnv