Calcutta High Court (Appellete Side)
Balodev Pal vs Union Of India & Ors on 16 February, 2018
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
1
09 16.02.2018
SB/
K. Sadhu
Ct. No. 12 W.P. 25582(W) of 2016
Balodev Pal
Vs.
Union of India & Ors.
Mr. Arjun Roy Mukherjee
Ms. Saheli Mukherjee
..... For the Petitioner
Mr. Sambhunath Ray
Mr. Prabir Ray
..... For the U.O.I.
The dispute in question is centered around the
interpretation of the applicability of the Modified Assured Career
Progression Scheme (MACPS) introduced with effect from
September 1, 2009 by the Central Government. The said scheme
replaced and modified the then existing Assured Career Progress
Scheme (ACPS), that was introduced on August 9, 1999. Broadly
the objects of two schemes were inter alia to provide a financial
benefit to those employees in the Central Government and/or
related posts who had, in fact no avenue of promotion or were
stagnating in their existing posts. Under the ACP Scheme two
automatic revisions of grade pay i.e. on completion of twelve
years of service and thereafter on completion of twenty four
years of service, were to take place. The revision under the ACP
Scheme was an automatic change over from the pay grade in the
existing posts to the pay grade under the next higher
promotional posts.
There were certain other conditions specified for
applicability of the ACP Scheme which are however not relevant
2
in the facts of this case.
Thereafter, on the recommendation of the Sixth Pay
Commission, which was itself made after receiving the
representations from all stakeholders the existing ACP Scheme
was modified. The new scheme was called Modified Approved
Career Progression Scheme (MACP, Scheme). The salient
features of MACP Scheme was that three separate revisions were
proposed (as opposed to two under the earlier ACP Scheme). The
said three revisions were after completion of ten years, twenty
years and thirty years of service. The quantum of revision was
also changed. Under the MACP Scheme the revision was from
the existing pay grade to the next higher pay grade (not in the
pay grade of next higher posts).
To address non‐availability of similar and uniform
grades in some organizations under the Central Government, the
MACP Scheme was to apply in terms of the Revised Pay Rules of
2008 (Pay Rules of 2008). The application of the Pay Rules of
2008 was mandated to prevent unequal revision of Pay grades
after applying the MACP Scheme and to achieve uniformity
amongst similarly situated employees as also to prevent
disparity between various wings of and the various
organizations under the Central Government.
The writ petitioner is in the post of Inspector with the
Central Industrial Security Force (C.I.S.F.). The post of Inspector
carried to a pay grade of Rs.4,600/‐. The next grade in the CISF
was directly to Rs.5,400/‐, which is similar to the grade in the
3
next promotional post of Assistant Commandant. In between
Rs.4,600/‐ and Rs.5,400/‐, there are no other pay grades in the
CISF.
The respondents applying the MACP Scheme have fitted
the petitioner in the grade of Rs.4,800/‐. This is the next pay grade as per the Pay Rules of 2008. The writ petitioner is aggrieved by the same. He contends that no pay grade of Rs.4,800/‐ exists. In the CISF and hence he ought to have been granted and or allowed career progression under the MACP Scheme in the pay grade of Rs.5,400/‐ i.e., the next available pay grade in the CISF, albeit also the pay grade for the next post of Assistant Commandant.
The writ petitioner relies upon of a Single Judge decision of the Punjab & Haryana High Court in CWP No.28431 of 2013 (H.B.L. Meena & Ors. -Vs‐ Union of India & Ors.). In the said decision the Hon'ble Punjab & Haryana High Court at Chandigarh Bench, in facts that are substantially similar to the facts in the instant case, has held that upon applying of the MACP Scheme the Inspector‐petitioner therein also of the CISF would be entitled to a pay grade of Rs.5,400/‐. This according to the said decision has to be applied, as there is no other pay grade between Rs.4,600/‐ and Rs.5,400/‐ in the C.I.S.F. In the said decision the Hon'ble Single Judge has also relied upon a Division Bench judgment of the same High Court in CWP No.19387 of 2011 dated 19th October, 2011 which upheld a decision of the Central Administrative Tribunal. 4
With due respect to the Hon'ble Single Judge of the Punjab and Haryana High Court, I am unable to persuade myself to agree with the decision rendered in CWP No.28431 of 2013.
The reasons therefore, are firstly that the facts and circumstances in the decision of the Central Administrative Tribunal confirmed by the Division Bench of the Punjab & Haryana High Court in CWP No.19387 of 2011 are substantially different from the facts before me as also those in CWP No.28431 of 2013. The writ petitioner has annexed to the writ petition the decision of the Central Administrative Tribunal, New Delhi dated 26th November, 2012 passed in OA No.904 of 2012.
The Central Administrative Tribunal in OA No.904 of 2012 was itself relying upon a decision rendered by the Chandigarh Bench of the same Tribunal in OA No.1038/CN/2010 [Raj Pal ‐Vs‐ Union of India & Ors.]. In the Raj Pal (supra) case the said petitioner concerned who was admittedly a Photocopier in an LDC post. After taking the benefit under the ACP Scheme and at the time of application of the MACP Scheme he had already been promoted to an UDC post. Therefore, there was no bar in allowing to the next higher grade in the next higher post to the petitioner therein. The facts of the instant case are different.
The relevant portion of the MACP Scheme being No.35034/3/2008 Estt. (D) dated 19/05/2009 issued by the DOPT, Ministry of Personnel, Public Grievances and Pension, particularly the 2nd paragraph at Annexure 'R‐2', is set out herein below:‐ 5 "A true and purposeful interpretation of the MACP Scheme in the context of the facts of the instant case and particularly the circular dated 19/05/2009 set out hereinabove would imply that the MACP Scheme conceives of a financial upgradation only to the next higher grade. If the next grade as stipulated in the Pay Rules of 2008 is not available in a particular organization, as in the instant case of the CISF, one has to fallback on the next available grade as stipulated in the Pay Rules of 2008. Granting an automatic pay revision to the grade in the next promotional post recording to him defeat the objects and purpose of the MACP Scheme itself. It would also bring great disparity between similarly situated persons in other departments and/or organizations of the Central Government between similarly situated persons. Further the benefit accrued by a regular promotion would also be rendered otiose."
The aforesaid explanation clearly indicates that the revisions under the MACP Scheme can only and only be given to the next grade of pay. If such next grade is not available in the hierarchy of the CISF the Pay Rules of 2008 must necessarily be imported to harmonize and uniformly apply the MACP Scheme under the Central Government. For the purpose of implementation of a special scheme, special measures can definitely and should necessarily be applied to give effect to the object and purpose of the said special scheme.
In the same set of facts, a Division Bench of the Delhi High Court in R. S. Sengor & Ors. -Vs‐ U.O.I. & Ors. reported in 2011 SCC Online Del 1662 at paragraph 11 of the said judgment came to the same conclusion:‐ "11. Whatever may be the dispute which may be raised with reference to the language of paragraph 2 of the MACPS the illustration as per para 4 of Annexure I to the OM, contents whereof 6 have been extracted hereinabove, make it clear that it is the next higher Grade Pay which has to be given and not the Grade Pay in the next hierarchical post and thus we agree with the respondents that Inspectors have to be given the Grade Pay after 10 years in sum of Rs.4,800/‐ and not Rs.5,400/‐ which is the Grade Pay of the next Pay Band and relatable to the next hierarchical post. To put it pithily, the MACPS Scheme requires the hierarchy of the Grade Pays to be adhered to and not the Grade Pay in the hierarchy of posts."
The same view was reiterated by another Division Bench of the Delhi High Court in Swaran Pal Singh & Ors. -Vs‐ U.O.I. & Ors. reported in 2015 SCC Online Delhi 8098 at para 19 it was held as follows:‐ "19. The grievance of the petitioners as made, is however, contrary to the fundamental concept on which MACPS introduced through the 6th Central Pay Commission operates. A bare reading of paragraph 2 of the MACPS would make it clear that it is the next higher Grade Pay which has to be given and not the Grade Pay in the next hierarchical post, as was available under the ACP Scheme with reference to the pay scale of the next above hierarchical post. It is not in dispute that MACPS supersedes ACP Scheme which was in force till August 31, 2008. Therefore, after August 31, 2008 any financial upgradation would be confined to placement in the immediate next higher grade pay in the hierarchy of the recommended revised Pay Band. The use of word 'merely' in para 2 of the Scheme supports this interpretation. Paragraph 2 further clarifies that the higher Grade Pay attached to the next promotional post in the hierarchy of the concerned cadre/organization will be given only at the time of regular promotion. Therefore, the claim that the petitioners should also be placed in the replacement Pay Band applicable to the next promotional post in the hierarchy as was available under the ACP Scheme is misplaced."
In view of the aforesaid, I am inclined to and follow the views of the aforesaid two Division Bench decision of the Delhi 7 High Court. I am unable to interfere with the order No.E‐ 31016/1/FUG‐Insp(E) B. Pal/2015/Estt.I/09 dated 13th January, 2016 passed by the Director General, CISF, Ministry of Home Affairs.
It is recorded that learned counsel for the writ petitioner has made a very sincere and a dedicated attempt in putting‐forth his arguments which, however, in the facts could not be accepted.
The copy of the judgment rendered by the Punjab & Haryana High Court in CWP No.28431 of 2013 is kept with the records.
There shall be, however, no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties on priority basis.
(Rajasekhar Mantha, J.)