Central Administrative Tribunal - Delhi
Jasvinder Pal Singh Sehgal vs M/O Urban Development on 10 January, 2023
Item 46/C-V OA No.441/2016
Central Administrative Tribunal
Principal Bench, New Delhi
OA No. 441/2016
This the 10th January, 2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
1. Jasvinder Pal Singh Sehgal,
Age 52 Years,
S/o Late Sh. G. S. Sehgal,
R/o DB-69/F, Hari Nagar,
LIG Flats (G -8 Area),
New Delhi-110064
2. Jaswant Singh,
Age 49 Years,
S/o Late Sh. Hamela Ram,
R/o 79/1 A, Sec-2,
Kali Bari Marg, New Delhi-110001
3. Anjali Sawhney,
Age 49 Years,
W/o Sh. Anil Sawhney,
R/o RZH 56/57, Lane No.8,
Raghu Nagar, Pankha Road,
New Delhi-110045
4. Suman Jain,
Age 49 Years,
W/o Sh. Vipul Jain,
R/o B-60, Naraina Vihar,
New Delhi-110028
5. Meenakshi Kaushik,
Age 48 Years,
W/o Sh. Hemant Kaushik,
R/o Flat No. 301, HMM Employees Society,
Plot No. 6, Sec-10, Dwarka,
New Delhi
6. Satish Chandra Verma,
Age 53 Years,
S/o Sh. K.L. Verma,
R/o E-59, New Palam Vihar,
Phase-I, Gurgaon,
Haryana-122017
Item 46/C-V OA No.441/2016
7. Bhupander Singh,
Age 48 Years,
S/o Sh. Balbir Singh,
R/o 42, DDA MIG Flats (Pink Aptts.),
IInd Floor, GRP-I, Sec-18 B,
Dwarka Phase-II, New Delhi-110078
8. Santosh Anand,
Age 51 Years,
W/o Sh. Om Prakash,
R/o H. No.558, Sec-22A,
Gurgaon, Haryana-122015
9. Geeta Wadhwa,
Age 50 Years,
W/o Sh. Ashwani Wadhwa,
R/o C-I-211, Lajpat Nagar-I,
New Delhi-110024
10. Geeta Nirwal/ Marode,
Age 50 Years,
W/o Sh. Satish Kumar,
R/o 372, Sec-6, Bahadurgarh,
Haryana-124507
11. Krishan Pal Rawat,
Age 53 Years
S/o Late Sh. R.S. Rawat,
R/o A-175, Manu Aptt. Mayur Vihar,
Phase-I, Delhi-110091
12. Sunita Jain,
Age 49 Years
W/o Sh. Rajesh Kumar Jain,
R/o C-706, Rail Vihar, Sec-15,
Part-I1, Gurgaon,
Haryana-122001
13. Kimi Syal,
Age 50 Years
W/o Sh. Pradeep Syal,
R/o H. No. 3652, Sec-23,
Gurgaon, Haryana-122017
14. Lipika Ghosh,
Age 50 Years
W/o Sh. Jaidev Ghosh,
R/o 76/7, Pushp Vihar, Sec-I,
New Delhi-110017
Item 46/C-V OA No.441/2016
15. Praveen Prabha Sharma,
Age 51 Years
W/o Sh. Vinod Sharma,
R/o 90/18 A, IInd Floor,
Malviya Nagar, New Delhi-110017
16. Rekha Sarpal,
Age 49 Years
W/o Sh. Naveen Kumar Sarpal,
R/o 14-B, MIG Flats, Rajouri Garden,
New Delhi-110027
17. Achla Mendiratta,
Age 53 Years
W/o Sh. Prem Kumar,
R/o EC-287, Maya Enclave,
Hari Nagar, New Delhi-110064
18. Kanchan Batra,
Age 51 Years
W/o Sh. Ashok Batra,
R/o 22/1086, Lodi Colony,
New Delhi-110003
19. Sonia Chugh,
Age 47 Years
W/o Sh. Sanjay Chugh,
R/o C-4H/159 B, Janak Puri,
New Delhi-110058
20. Manju S Payal,
Age 50 Years
W/o Sh. Prashant Payal,
R/o H. No. 785, Sec-9,
R.K. Puram, New Delhi-110022
21. Shobha Ringe,
Age 50 Years
W/o Sh. Ravi Ringe,
R/o C-212, Pandav Nagar,
Patparganj Road, Delhi-110092
22. Renu Saxena,
Age 50 Years
W/o Sh. Shailendra Saxena,
R/o E-14 A, DDA Flats Munirka,
New Delhi-110067
Item 46/C-V OA No.441/2016
23. Neeru Dandoma (Sharma),
Age 50 Years
W/o Sh. Adesh Sharma,
R/o GG-I/10A, MIG Flats,
Vikas Puri, New Delhi-110018
24. Saroj,
Age 50 Years
W/o Sh. Abhey Singh,
R/o 101, Oasis Apptt.,
Ramprastha Green, Sec-7,
Vaishali, Ghaziabad-201010.
25. Sangeeta Malik,
Age 49 Years
W/o Sh. Prem Pal Malik,
R/o WZ-306, Street No. 17,
Shiv Nagar, PO Janakpuri,
New Delhi-110058
26. Shabana Ahmed,
Age 51 Years
W/o Sh. Shakil Ahmed,
R/o 149-Zahoori Apptt.,
Gaffar Manzil, Jamia Nagar,
New Delhi-110025
27. Neerja Malik,
Age 50 Years
W/o Sh. Anil Malik,
R/o Flat No. 205,
19/41 West Punjabi Bagh,
New Delhi-110026
(All the applicants are working as Assistant AD and
TOs)
...... Applicants
(By Advocate: Mr. Suresh Sharma for Mr M K Bhardwaj)
Versus
1. Union of India,
Through its Secretary,
Ministry of Urban Development,
Nirman Bhawan, New Delhi
2. The Director General,
Item 46/C-V OA No.441/2016
CPWD, Nirman Bhawan, New Delhi
3. The Secretary,
DOP&T,
North Block, New Delhi
...Respondents
(By Advocate: Mr Rajinder Nischal)
ORDER (ORAL)
Hon'ble Mr. Manish Garg, Member (J):
The applicants in the present OA are seeking following reliefs:-
"(a) To quash and set aside the impugned order dated 30.01.2015 (A-1) and direct the respondents to grant grade pay of Rs. 6600 to the applicants as 2nd Financial Upgradation on the same analogy on which similarly placed persons were granted grade pay of Rs. 6600 as 2nd Financial Upgradation.
(b) To declare the action of the respondents in not granting the scale of Rs. 15600-39100 (PB-3) with Grade Pay of Rs. 6600 & 7600 as given to similarly placed persons vide order dated 01.01.2013 to the applicants as illegal and arbitrary.
(c) To direct the respondents to grant scale of Rs.
15600-39100 with Grade Pay of Rs. 6600 & 7600 as 2nd & 3rd financial upgradation to the applicants from due date with all consequential benefits of pay.
(d) To allow the OA with costs
(e) Pass such other direction or directions order
or orders as this Hon'ble Tribunal may deem fit and proper to meet the ends of justice."
1. At the outset, learned counsel for the respondents states that the present matter is squarely covered by a decision rendered by the Hon'ble Apex Court in case of UOI Item 46/C-V OA No.441/2016 Vs. Mohan Nair decided on 05.03.2020 in Civil Appeal No. 2016 of 2020 wherein it has been help as under:-
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 2 nd 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 1 st 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 Item 46/C-V OA No.441/2016 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 Item 46/C-V OA No.441/2016 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 Item 46/C-V OA No.441/2016 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 3 rd 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 Item 46/C-V OA No.441/2016 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 Item 46/C-V OA No.441/2016 Committee, Union of India and DoP&T to consider the same as they deem it appropriate and take a decision in accordance with law.
3. Learned counsel of the applicants does not dispute the said preposition of law laid down by the Hon'ble Apex Court.
4. In view of aforesaid law laid down by the Hon'ble Apex Court, the present OA is disposed of as having become infructuous.
There shall be no order as to costs.
(Manish Garg) (Tarun Shridhar)
Member (J) Member (A)
/pinky/