Full Text
HIGH COURT OF DELHI
JUDGMENT
23413/2023 SH. PRABHAKAR RAO THANIKONDA & ORS ..... Appellants
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.
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
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. LPA 419/2023
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 l[2].12.2018 on completion of 30 years against the required 30 years to be counted from the direct entry grade of 4200. LPA 419/2023 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 Hon’ble 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:-
(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) LPA 419/2023 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:
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- 9300-34800 PB-2 GP4200 2 PRAKASH KUMAR 17.10.2003/ 09.08.1999 5500-175- 9300-34800 PB-2 GP4200 3 RAM KUMAR GUPTA 17.11.2003/ 09.08.1999 5500-175- 9300-34800 PB-2 GP4200 4 MS.
UJJWALA KR.
WADKE 01.04.2004 5500-175- 9300-34800 PB-2 GP4200 LPA 419/2023 (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:-
(1) Name (2) Date of Promotion to post of Technical Officer / Years for Promotion (3) Corresponding Pay Band and Grade as per 6th Pay Commission(5) 1 PRABHAKARA RAO THANIKONDA 30.10.2002 (B)/13 Years 5500-175- 9300-34800 PB-2 GP4200 2 PRAKASH KUMAR 11.11.2002 (B)/17 Years 5500-175- 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:-
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 LPA 419/2023 (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 LPA 419/2023 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 LPA 419/2023 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 LPA 419/2023 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 LPA 419/2023 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:
LPA 419/2023
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 Hon’ble 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