Union of India v. M.V. Mohanan Nair

(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 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 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 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 5th Pay Commission and the 6th 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/       Present Scale       Name of     Corresponding Pay Corresponding   │
│                Grade                             Pay         Bands/Scales        Grade Pay   │
│                                               Band/Scale                                     │
│        (1)      (2)             (3)              (4)              (5)             (6)        │
├──────────────────────────────────────────────────────────────────────────────────────────────┤
│         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        │
└──────────────────────────────────────────────────────────────────────────────────────────────┘

6.2 of the ACP Scheme, the

│
│        composition of the Screening Committee shall be the same as                                                  │
│        that of Departmental                  Promotion Committee (DPC) prescribed                                   │
└─────────────────────────────────────────────────────────────────────────────────────────────────────────────────────�

��

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 1st 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 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-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 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 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.1938[7] of 2011 before the High 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 1st financial upgradation under ACP Scheme in the scale of pay of Rs.4000-6000/- and 2nd financial upgradation in the scale of Rs.5500-9000/-. In Raj Pal’s case, taking note of the earlier round 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 1st financial upgradation under ACP Scheme in the scale of pay of Rs.4000-6000 and 2nd 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 1st ACP (under the old ACP) w.e.f. 09.08.1999 in the pay scale of Rs.4000-6000.” [Underlining added]

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 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 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 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; 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. 2nd Meeting of the Joint Committee dated 15.09.2010:- In the 2nd 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. 3rd Meeting of the Joint Committee dated 15.03.2011:- In the 3rd 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 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 3rd Meeting of Joint Committee dated 15.03.2011). Pursuant to the decision of the 3rd 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 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 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 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 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.