Delhi Development Authority v. Satender Singh and Ors.

1. The Delhi Development Authority('DDA')has filed these 3 petitions against a common order dated V'December,2017 passed by the Central Administrative Tribunal, Principal Bench-Ill('CAT')in three sets of OA Nos.2005/2014,1945/2014 and 434/2016.The prayersin all the above OAs by the Respondents, who were working as Malis in the DDA,was for a direction to the DDA to grant each of them the benefits of the second financial upgradation underthe Assured CareerProgression('ACP')scheme upon their having completing 24 years of continuous qualifying service, together with interest.

2. In resisting the above plea,the case put forth by the DDA was that with effect from 1 September,2008,the Modified Assured Career Progression ('MACP') Scheme had become operational and that the Applicants i.e. Respondents herein were no longer entitled to receive the benefits under the ACP scheme. It was contended that the ACP scheme was valid only until 31'^August,2008,by which datenoneofthe Respondentshad completed24 years of service. It was submitted that since the MACP scheme was introduced by the Office Memorandum ('OM') dated 19'^ May, 2009, superseding the earlier ACP scheme,the question of granting any benefit underthe ACP scheme after3D'August,2008 did notarise.'

3. The Respondents, on the other hand, contended that the MACP scheme could not have been given retrospective effectfrom D'September,2008 and thatsince it wasintroduced only on 19"^ May,2009,the vested rightin each ofthe Respondentsto the benefits ofthe second financial upgradation under the ACPscheme could notbetaken away. W.P.(C)5927/2018,5932/2018& 476/2019 Page2of[7]

4. In the impugnedjudgment dated 1''December,2017,the CAT accepted the plea ofthe Respondents and directed the DDA to consider their cases for grant of the benefits of the second financial upgradation under the AGP scheme till 19'*^ May,2009,the date ofissuance ofthe OM under which the MAC?scheme was introduced.

5. Initially,the DDA filed two writ petitions i.e. W.P.(C)No.5927/2018 & 5932/2018, which came up for hearing on 29''" May,2019, on which date while directing notice to issue to the Respondents, the operation of the impugned order was stayed. Subsequently,the third petition being W.P.(C) No. 476/2019 was filed against the common order of the CAT in OA No.434/2016. On 2V^ January,. 2019 while directing notice to issue, this Courtstayed the operation ofthe impugned order ofthe CAT.

6. This Courthas heard the submissions oflearned counselforthe parties.

7. Before proceeding to examine the submissions, it requires to be noticed thatin Union ofIndia v.BalbirSingh Turn(2018)11SCC99the Supreme Court was considering the issue ofwhether in respect ofthe Armed Forces Personnel, the benefit of the MACP is applicable from the date of the recommendations of the 6^^ Central Pay Commission ('CPC') i.e. U' January, 2006 or only from D'September, 2008, as was decided by the Central Government.

8. In trying to defend the decision ofthe Central Government, its counsel W.P.(C)5927/2018,5932/2018&476/2019 Page3of[7] St before the Supreme Court relied inter alia on the decision dated 1 September, 2016 of a Division Bench of this Court in LPA No. 405/2016 (Delhi Urban ShelterImprovementBoard v. ShashiMalik). The Supreme Court noticed the said submission and certain other decisions ofthe High Courts of Kerala and noted that "none of these judgments is applicable because the issue whether the MACP is part of the pay structure or allowances were not considered in any ofthese cases".

9. The Supreme Court in BalbirSingh Turn (supra)categorically held that although there could be some "gainers and some losers", the "intention of the Government was clear that this Scheme which was a part,of the pay structure would apply from January, 2006." It noted that the Central Government's Resolution dated 30'^ August, 2008 deciding to implement the recommendations ofthe 6^*" CPC fixed the applicable date as P'January,

2006. It was held that this decision of the Cabinet could not have been modified by issuing any executive instructions limiting the applicability of the MACP from a later date.

10. Learned counsel for the Respondents before us soughtto distinguish the judgment in Union ofIndia v. Balbir Singh Turn (supra) by contending that it applies only to the Armed Forces and not to civil establishments like the DBA. Secondly, it is submitted that the Central Board of Excise and Customs('CBEC')had on 19'^ January, 2018 issued a clarification to the effect that it was not feasible to extend the benefit ofthe MACP from E' Januaiy,2006 onwards. Reliance was placed on thejudgment ofthis Court in Delhi Urban Shelter Improvement Board v. Shashi Malik (supra) to W.P.(C)5927/2018,5932/2018&476/2019 p^ge4of[7] A contend that the Respondents could not be denied the benefit ofthe second financial upgradation under the ACP scheme,since the MACP scheme was announced only on 19^^ May, 2009, whereas their right to such benefits under the ACP benefit accrued prior to that date.

11. It must be noted here that the question in DUSIB v. Shashi Malik {supra) v^diS, as articulated in para 19 of the judgment, "whether or not financial upgradation as payable under the ACP scheme between P' September,2008 to 19^*^ May,2009(granted under the ACP scheme)can be withdrawn and taken away? "The Court noted that the question that had arisen was in relation to whether the grant offinancial upgradation under the ACP scheme was more beneficial to the employee. In that context, it was held that"the benefit offinancial upgradation under the ACP scheme cannot be taken away."

12. Clearly by the time this Court decided Shashi Malik (supra), the decision ofthe Supreme Court in Balbir Singh Turn had not been rendered. After the decision ofthe Supreme Court in Balbir Singh Turn,it becomes abundantly clear that the MACP benefit is available across the board from 1^^ January,2006 onwards.While the decision in BalbirSingh Turn(supra) may have been rendered in the context ofthe Armed Forces,there have been numerous other judgments subsequently rendered by the Division Benches ofthis Court extending that benefit to members ofthe Central Armed Police Forces('CAPFs')and even to the civilians in the Central Government(see, for e.g., the decision dated 13"^ November,2018 ofthis Court in W.P.(C) No..4760/2018 in R.K.Sharma v. Union ofIndia). In any event, since the W.P, (C)5927/2018,5932/2018 476/2019 Page5of[7] I ■X f ).th DDA has decided to adoptthe MACP, it would have no option butto extend the benefit of the MACP, in tehms ofthe judgment in Ba/iir Singh Turn (supra), with effect from 1'' January, 2006 onwards.

13. It must be noted here that even the CAT did not have the benefit ofthe judgment ofthe Supreme Court in Balbir Singh Turn when it decided the present cases on December, 2017. The outcome undoubtedly would have been different had it been so.

14. In the present cases, since there is no question ofthe benefit granted to the Respondents under the erstwhile ACP scheme being taken away, the apprehension which led to the issuance of the circular/order dated 9 January, 2019 of the CBEC will not hold true. In any event, it is doubtful whether the CBEC can issue such a direction which appears to fly in the face ofthe judgment ofthe Supreme Court in Balbir Singh Turn (supra). However, that is not an issue directly involved in the present petitions.