Union of India v. Manju Vashistha & Others

8. The illustrations[1] given in Paragraph 28 of the MACP Scheme also support this view. As per Illustration A, an employee, who has earned one or two promotions, would be entitled to financial upgradation after he has spent 10 years without any promotion thereafter. Another financial upgradation would be granted after the employee has spent 20 years on the first promotional post in the same grade pay. The last sentence in Illustration B is significant for it relates to a case wherein an employee has earned two promotions before completion of 20 years. Such employee would be entitled to third financial upgradation on completion of 10 years We accept and record that the examples to the illustrations given in paragraph/clause 28 do reflect some variance with the view expressed by the Division Bench of this Court in some decisions to which one of us (Sanjiv Khanna, J.) was also a Member, holding that MACP Scheme requires reference only to Part A, Section 1 of the First Schedule of the Central Civil Services (Revised Pay) Rules, 2008 and not to the promotional pay scale. The examples would, however, reflect that when a person is granted financial upgradation and then promoted, the financial upgradation granted earlier get subsumed in the promotion and is not counted for the purpose of MACP Scheme. Further, upon promotion, the next financial upgradation is not with reference to the scale or grade pay as applicable on direct entry, but with reference to the next grade pay in the hierarchy as per Part A, Section 1 of the First Schedule of the aforesaid Rules with reference to the pay scale of the promotional post. In other words, if the incumbent is granted financial upgradation and then granted promotion and the pay scale of the promotional post is higher than the scale provided in Section 1, Part A to the First Schedule of the Rules, the employee would be entitled to next financial upgradation on completion of 10 years of service in the said grade to the next higher grade pay with reference to the pay scale applicable to the promotional post. In this case, this issue need not be examined. If required and necessary, the issue will be examined in an appropriate case and may, if required, be referred to a Larger Bench. of service in the grade pay from the date of second promotion or 30 years of service, whichever is earlier. Thus, the stipulations relating to 10, 20 and 30 years of regular service and 10 years in the grade pay operate independently and in alternative. Whenever any of the two alternative conditions are satisfied, the benefit under the MACP Scheme should be available. Conditions and stipulations of one cannot be read into another.

9. The aforesaid position has been accepted by the DoP&T in their clarification issued by way of Frequently Asked Questions (FAQs) on the MACP Scheme dated 1st April, 2011 wherein in response to question Nos. 2 and 27, it has been clarified:-

adopted w.e.f. 1.1.2006 in the promotional hierarchy. (i): Since the pre-revised pay scales Rs.5000-8000 & Rs.5500-9000 have been merged and placed in PB-2 with grade pay of Rs.4200, 1st financial upgradation would be allowed in the grade pays of Rs.4600, subject to fulfillment of promotional norms as stipulated in condition no.6 of Annexure-I ACPS dated 9.8.1999, in terms of clarification given on point of doubt no.1 of ACPS dated 10.02.2000.

(ii) What would be 2ndfinancial upgradation for employee recruited in 5000-8000, who has completed 24 years of regular service on 12.04.2007 (between 1.1.2006 and 31.8.2008) Since the pre-revised pay scales Rs.6500- 10500 & Rs.7450-11500 have been merged and placed in PB-2 with grade pay of Rs.4600, 2nd financial upgradation would be allowed in the grade pay of Rs.6600, subject to fulfillment of promotional norms (after framing of RRs post merger) as stipulated in condition no.6 of Annexure-I ACPS dated 9.8.1999, in terms of clarification given on point of doubt no.1 of ACPS dated 10.02.2000.

(iii) If a Government servant recruited in the prerevised pay scale of Rs.5000- 8000 has been promoted in the promotional hierarchy in the prerevised 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 claim 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 1 st ACP would accordingly be allowed in the promotional hierarchy i.e. in the grade pay of Rs.4600 w.e.f. 01.01.2006.

(iv) If the above Government servant had put in 22 years as on 31.08.2008, then what would be the entitlement in MACP (iv): As given above, the 1 stACP would be in PB- 2 grade pay of Rs.4600 after ignoring the previous promotion. Thereafter, since employee has completed more than 20 years of regular service on 01.09.2008, he would be entitled for 2ndfinancial upgradation under the MACPS in the immediate next higher grade pay of Rs.4800 in PB-2 subject to fulfillment of condition as stipulated in para 17 of Annexure-I of MACPS dated 19.05.2009. " Answer to question No. 2 states that financial upgradation can be granted in the two different set of circumstances. Firstly, on completion of 10, 20 and 30 years of continuous regular service, and secondly, whenever a person has spent 10 years of continuous service in the same grade pay. Question No. 27 refers to hypothetical situations and response to subquestion (iv) elucidates that where an employee has spent 22 years of service, he would be entitled to second financial upgradation under the MACP Scheme as he has completed more than 20 years of service.

10. The petitioners have also referred to the clarification given by the Department of Personnel and Training (DoP&T) interpreting the said Scheme. The said opinion, for the sake of clarity, is reproduced below:-

11. The error or misunderstanding in the DoP&T clarification relied by the petitioners is apparent in the latter portion of paragraph 4 for firstly, it does not notice the correct facts and secondly it is contradictory and has reached an erroneous and wrong conclusion. The factum that the respondents were appointed in 1984, 1985 and 1986 and had been promoted once and had spent more than 20 years of service at the promotional post went unnoticed. The respondents were entitled to first financial upgradation after completing 10 years of service in the promotional post under the MACP Scheme. However, as the period of 10 years had ended prior to 1st September, 2008 and period of 20 years at the promotional post was not complete, benefit of the second financial upgradation was given with effect from 1st September, 2008. The benefit of the third financial upgradation would be available to the respondents after they had completed 20 years in the same grade pay at the promotional post or 30 years of overall service. Either of the two conditions were required to be fulfilled. The DoP&T has wrongly interpreted the MACP Scheme and observed that the benefit of the third MACP would be available only after the respondents have completed 10 years in the grade pay granted to them as a result of second MACP on 1st September, 2008. The petitioners and DoP&T have forgotten and failed to notice that the respondents had more than 10 years of service but less than 20 years of service in the first promotional post, i.e. the grade pay, when the second MACP benefit was granted to them effective from the date when the MACP Scheme was enforced, i.e., 1st September, 2008. Grant of the said benefit did not obliterate and erase the period of service beyond 10 years in the grade pay of the promotional post. The said period did not get exhausted or subsumed when the second MACP benefit was granted. The balance period beyond the first 10 years in the same grade pay would be counted and included along with the service rendered after 1st September,

2008. When computed so, after the respondents complete 20 years of service, they would be entitled to grant of the third MACP benefit. Thus, we have no hesitation in holding that the DoP&T‟s clarification in paragraph 5 is erroneous and wrong.

12. If the contention of the petitioners is to be accepted, it will lead to absurdity. An employee, who has completed 20 years of service in the same grade pay would be entitled to two financial upgradations and an employee who has completed 30 years of service in the same grade pay would be entitled to third financial upgradation. However, an employee who has completed 19 or 29 years of service or for that matter anything more than 10 and less than 20 or more than 20 and less than 30 years, would forego the excess period beyond 10 and 20 years which would become zero and would be treated as nil. Thus, an employee, who falls in this category (indeed most employees would fall in this category) would be at a disadvantage. This interpretation as put forth by the petitioners would be highly discriminatory and disadvantageous for those employees who were just short of 20 or 30 years of service, viz. those who had just completed 20 or 30 years of service. Apparent discrepancy and discrimination would result for in some cases more than 9 years of experience would get obliterated, whereas in others experience of few days or few months would not be counted. The erroneous interpretation given by the petitioners would result in clubbing and equating employees with varying service between 1 day, to 9 years and 364 days as alike and in one category, which in a scheme based upon length of service in the particular grade pay would be a contradiction and an incongruity and thus unacceptable.

13. Lest there be any confusion, we would like to explain our reasoning by giving an example to bring forth the incongruity and difficulties in the argument of the petitioners. Taking the example of two employees, who were appointed four years apart in 1988 and 1992 respectively, and had earned the first promotion after exactly 6 years from their date of joining, we would refer to the following table:- Particulars of Employees Year of Appointment Year of grant of 1st promotion (6 years post appointment) Year of completion of 10 years on same Grade Pay Grant of second financial upgradation under MACP Scheme Grant of 3rd Financial upgradation as per the Tribunal, i.e. on completing 20 years on the same Grade Pay Grant of 3rd Financial upgradation as contended by petitioners Employee A 1988 1994 2004 1.9.2008 2014 2018 on completion of 10 years after 1.09.2008; or in alternative when the employee has completed 30 years of service Employee B 1992 1998 2008 1.9.2008 2018 2018 on completion of 10 years after 1.09.2008; or in alternative in 2022, when the employee has completed 30 years of service We have, in the aforesaid example, assumed that none of the employees were granted financial upgradation under the ACP Scheme after 12 or 24 years from the date of initial joining. The two employees had earned the second financial upgradation on the same day, i.e., 1st September, 2008, and grant of third financial upgradation was the lis/dispute. As per the petitioners, the two employees appointed four years apart and having been granted second financial upgradation under the MACP Scheme on 1st September, 2008, would be entitled to the third financial upgradation in case they do not earn any more promotion after 10 years i.e. on 1st September, 2018, or 30 years after date of initial joining, whichever is earlier. The respondents on the other hand contend that employees „A‟ and „B‟, would be entitled to the grant of third financial upgradation on completion of 6 years and 10 years of service respectively, so as to complete the period of 20 years of service in the same grade pay which was granted on first promotion. The stand of the respondents has the effect of taking into consideration the years of service beyond the period of 10 years, which were not accounted for and subsumed when the second financial upgradation was granted. The stand of the petitioners, on the other hand, has the effect of nullifying the extra years of service rendered beyond 10 years. The period of 30 years of service remains constant in the two cases and would pose no difficulty. We are concerned and examining whether the respondents were entitled to third financial upgradation under the second alternative, i.e. 10 years of service in the same grade of pay. If the argument of the petitioners is to be accepted, grant of benefit under the second alternative/situation of completion of 10 years on the same grade pay has the effect of equating unequals as equals and causes prejudice to those who had rendered longer period of service before grant of the second financial upgradation, for the period beyond 10 years is nullified and treated as zero. As is apparent in the table recorded above, Employees A and B would be granted third financial upgradation in 2018, thus meaning that employees A and B, appointed and promoted 4 years apart would both be entitled to grant of third financial upgradation in the same year, despite employee A having rendered an additional 4 years of service in the same grade pay in the promotional post.

14. The peculiar situation which has arisen in the present case would not have arisen if the MACP Scheme had been in operation when the respondents were inducted into service.. Such abnormal situation may also arise because the ACP Scheme envisages two financial upgradation after 12 years and 24 years of service, whereas MACP Scheme envisages grant of three financial upgradation after 10, 20 and 30 years of service or 10 years of service in the same grade pay. It would be better or more logical to ensure that all employees are treated equally for grant of benefit of second or third financial upgradation under the second situation by not obliterating or discounting the period of service beyond 10 years or 20 years while granting benefit under the MACP Scheme. This would ensure uniformity and alike treatment to all employees.

15. At this stage we note that the view we have taken also finds support in paragraph 15 of the office memorandum dated 9th August, 1999 by which Assured Career Promotion Scheme was introduced. The said Scheme postulated two financial upgradations on completion of 12 and 24 years of service respectively. Paragraph 15 of the ACP Scheme reads:-

The aforesaid paragraph postulated that employees who had already been in regular service for 12 years or more but had not completed 24 years at the same post would immediately be granted first financial upgradation under ACP Scheme, with the surplus years being counted towards eligibility for grant of second financial upgradation on the completion of 24 years of regular service and would thus, not have to wait for an additional 12 years for the same. Thus for an employee who had completed 18 years of service and been granted first financial upgradation on the coming into effect of the ACP Scheme, he would be granted the second financial upgradation after 6 years,(12+6+6) on completion of 24 years in service and not after 12 years from grant of first financial upgradation.

16. For the aforesaid reasoning, we do not find any merit in the present writ petition and the same is dismissed. There will be no order as to costs. -sd- (SANJIV KHANNA) JUDGE -sd- (CHANDER SHEKHAR)

JUDGE FEBRUARY 3, 2017 VKR