Jharkhand High Court
Dr. Nakul Modi vs The State Of Jharkhand on 9 March, 2022
Bench: Shree Chandrashekhar, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
L.P.A. No. 288 of 2015
with
L.P.A. No. 325 of 2015
-------
[Against the judgment dated 13.04.2015 passed by the learned Single Judge of this Court
in W.P.(S) No. 5991 of 2013 and analogous cases]
In L.P.A. No. 288 of 2015
Dr. Nakul Modi, s/o Shri Banwari Modi, r/o village Anantdih, PO
Pathaldiha, PS and District Koderma ... Appellant
Versus
1. The State of Jharkhand, through the Secretary, Animal Husbandry and
Fisheries Department, Nepal House, Doranda, PO and PS Doranda, Ranchi-
834002, District Ranchi
2. Secretary, Finance Department, Government of Jharkhand, Project
Building, Dhurwa, PO Dhurwa, PS Jagannathpur, Ranchi-834004, District
Ranchi
3. Secretary, Animal Husbandry and Fisheries Department, Government of
Jharkhand, Nepal House, Doranda, PO and PS Doranda, Ranchi-834002,
District Ranchi
4. Director, Animal Husbandry and Fisheries Department, Government of
Jharkhand, Nepal House, Doranda, PO and PS Doranda, Ranchi-834002,
District Ranchi
5. District Animal Husbandry Officer, Ranchi, PO GPO and PS Ranchi,
Sadar, District Ranchi ... Respondents
In L.P.A. No. 325 of 2015
Dr. Dharma Rakshit Vidyarthi, s/o late P.N.Vidyarthi, r/o A/E-61, Ashok
Ashram, Dibdih, PO and PS Doranda, District Ranchi, at present posted as
Block Animal Husbandry Officer, Barhi, Block Barhi, PO and PS Barhi,
District Hazaribagh ... Appellant
Versus
1. The State of Jharkhand
2. The Secretary, Finance Department, Government of Jharkhand, Project
Building, PO Dhurwa, PS Jagannathpur, District Ranchi, Jharkhand
3. The Secretary, Animal Husbandry and Fishery Department, Government
of Jharkhand, Nepal House, Doranda, PO and PS Doranda, District Ranchi
4. Director, Animal Husbandry and Fishery Department, Government of
Jharkhand, Nepal House, Doranda, PO and PS Doranda, District Ranchi
5. District Animal Husbandry Officer, Hazaribagh, PO, PS and District
Hazaribagh ... Respondents
-------
2 L.P.A No. 288 of 2015
with
L.P.A No. 325 of 2015
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant(s) : Mr. Sumeet Gadodia, Advocate
Mr. Ritesh Gupta, Advocate
[in L.P.A. 288 of 2015]
Mr. Indrajit Sinha, Advocate
Mr. Arpan Mishra, Advocate
[in L.P.A. 325 of 2015]
For the Respondent-State : Mrs. Neelam Tiwary, Sr. S.C-II
For the Interveners : Ms. Chandana Kumari, Advocate
-------
(Through V.C.)
ORDER
th 9 March 2022 Per, Shree Chandrashekhar, J.
Dr. Nakul Modi who is the appellant in L.P.A. No. 288 of 2015 and Dr. Dharma Rakshit Vidyarthi who is the appellant in L.P.A. No. 325 of 2015 have challenged the common order dated 13 th April 2015 passed in W.P.(S) No. 5991 of 2013 and analogous cases.
2. Out of four writ petitions which were decided by the aforesaid common order dated 13th April 2015, W.P.(S) No. 5995 of 2013 was filed by Dr. Nakul Modi and W.P.(S) No. 5993 of 2013 was filed by Dr. Dharma Rakshit Vidyarthi.
3. The appellants were appointed in the Department of Animal Husbandry in the basic entry grade in the pay scale of Rs.2,200-4,000/- which were revised after 5th Pay Revision and their pay scale was revised to Rs.8,000-13,500/-. On implementation of 6th Pay Revision with effect from 1st January 2006 the appellants were placed in the revised pay scale of Rs.9,300-34,800/- with grade pay of Rs.5400/-. Thereafter, the appellants alongwith 286 other officers of the Department of Animal Husbandry were granted 1st MACP vide notification dated 30th April 2012 in the pay scale of Rs.15,600-39,100/- in the grade pay of Rs.5400/-.
4. The grievance of the appellants is that even after financial upgradation in a higher pay scale by putting them in grade pay of Rs.5400/- the department put them under a different category as compared to the other officers working in the same department inasmuch as they were put in grade pay of Rs.6600/- in the same scale of pay which would amount to hostile 3 L.P.A No. 288 of 2015 with L.P.A No. 325 of 2015 discrimination against the appellants.
5. Before the writ Court, a specific plea was raised by the appellants and others that without any reasonable classification the co-employees who were senior by few years were given higher grade pay by the notification dated 30th April 2012. During pendency of the writ petitions, paragraph nos. 1(iii) and 2 of the corrigendum dated 22nd June 2012 which explained the notification dated 30th April 2012 were also challenged by the appellants as arbitrary and discriminatory.
6. The learned writ Court dealt with the issue with reference to the affidavit filed by the Under Secretary, Finance Department, Government of Jharkhand whereunder the State of Jharkhand took a stand that the difference between ACP and MACP schemes is quite appreciable from a glance at both the schemes. Under the scheme of ACP an employee is entitled to the scale of pay and grade pay payable to the next "higher post", provided there are atleast two promotional posts in the same cadre. Whereas under MACP scheme an employee gets the grade pay in the next higher pay in the pay band, irrespective of cadre and promotional avenues.
7. The learned writ Court referred to the judgments in "Govt. (NCT of Delhi) v. Grade-I Dass Officers' Assn" (2014) 13 SCC 296 and "Union of India v. T.V.L.N. Mallikarjuna Rao" (2015) 3 SCC 653 to fortify the aforesaid opinion formed by him that classification of posts and determination of pay scale come within the exclusive domain of the executive and it would not be proper for the Court to modify the policy decision of the government in exercise of the powers of judicial review.
8. Before us, a similar stand has been taken by the State of Jharkhand and, therefore, we would extract paragraph nos. 7 and 8 of the affidavit dated 12th September 2014 filed by the Under Secretary, Finance Department, Government of Jharkhand before the writ Court, which read as under:
"7. That the petitioner has basically confused himself and has not been able to appreciate the difference between the scheme of ACP and the MACP. Under the scheme of ACP an employee was entitled to the grade pay payable to the next higher post provided that there are at least two promotional posts in the same cadre. However, under the scheme of MACP an employee is entitled to the next higher grade pay irrespective of their respective cadre and the promotional avenues.
8. That it is humbly stated and submitted that under the scheme 4 L.P.A No. 288 of 2015 with L.P.A No. 325 of 2015 of MACP, P.B.III 15600-39100 with grade pay of Rs. 5400/- is considered next higher grade pay to PB-II 9300-34,800/- with grade pay of Rs. 5400/-. The next higher scale payable to the petitioner of the instant case is Rs.15,600/-39,100/- with grade pay of Rs. 5400/-. The fact that grade pay remains the same does not mean that the employee does not stand to gain anything in so far as he shall be entitled to 3% of the basic salary payable to him as pecuniary benefit on account of grant of MACP."
9. Mrs. Neelam Tiwary, the learned State counsel has referred to the judgments in "Union of India & Ors. v. M.V. Mohanan Nair" (2020) 5 SCC 421 and "Director, Directorate of Enforcement & Anr. v. K. Sudheesh Kumar & Ors." 2022 SCC OnLine SC 101 to reiterate the stand taken by the State of Jharkhand.
10. By the notification dated 30th April 2012 the appellants were given 1st financial upgradation after their pay scale was revised to Rs.15,600-39,100/- in PB-III. Under MACP scheme as indicated in the resolution dated 1st September 2009, in the revised pay scale of Rs.15,600-39,100/- in PB-III the 1st financial upgradation shall be in grade pay of Rs.5400/-, 2nd financial upgradation in grade pay of Rs.6600/- and the 3rd financial upgradation would be in the grade pay of Rs.7600/-.
11. Relevant portions of paragraph no. 2 of the notification dated 30th April 2012 are extracted below:
"blh izdkj foÙk foHkkx ds ladYi la[;k&2981@fo0 fnukad & 01-09-2009 ds vkyksd esa fu;qfDr dh frfFk ls 10@20@30 o"kksZa dh yxkrkj lsok iwjh fd;s tkus dh frfFk vFkok fnukad &01-09-2008 ¼tks Hkh ckn dh frfFk gks½ ds izHkko ls muds uke ds lEeq[k vafdr LraHk & 8] 9 ,oa 10 esa mfYyf[kr frfFk ls foÙk foHkkx ds ladYi la[;k&660@fo0 fnukad & 28-02-2009 ds vUrxZr iqujhf{kr osrueku~ Øe'k% PB - III 15]600&39]100 xzsM osru :0 5400@& esa izFke PB - III 15]600&39]100 xzsM osru & 6600@& esa ददततय एववa PB - III 15]600&39]100 xzsM osru & 7600@& esa r`rh; la'kksf/kr lqfuf'pr o`fr mUu;u (MACP½ dk ykHk iznku djus dh Lohd`fr nh tkrh gS] ftldh lwph fuEuor~ gS% & ......................................................................................................................"
English Translation "Accordingly, in view of Resolution No. 2981/Vi. dated 01.09.2009 of the Finance Department, the benefit of granting first Modified Assured Career Progression (MACP) is approved in revise pay-scale in PB-III 15,600-39,100, grade pay Rs. 5400/-, second MACP in PB-III 15,600-39,100, grade pay Rs. 6600/- and third MACP in PB-III 15,600-39,100, grade pay Rs. 7600/- respectively on completion of 10/20/30 years of continuous service from the date of appointment or with effect from 01.09.2008 (whichever is a later date) from the date mentioned at Column No. 8, 9 and 10 against their names under Resolution No. 660/Vi. dated 28.02.2009 of the Finance Department and its list is as under:-
................................................................................................................................"
12. To bring in more clarity in the resolution dated 1 st September 5 L.P.A No. 288 of 2015 with L.P.A No. 325 of 2015 2009, a corrigendum was issued on 22nd June 2012 which outlines how 1st, 2nd and 3rd MACP can be granted to a government employee.
13. Paragraph nos. 1(iii) and 2 of the corrigendum dated 22 nd June 2012 are extracted below:
1(iii½ oSls i'kqfpfdRld] ftUgsa ,e0,0lh0ih0 ;kstuk ykxw gksus ds QyLo:i mijksDr fdlh Hkh vof/k ¼fnukad 01-09-2008 ls½ esa izFke foÙkh; mUu;u dk ykHk ns; gksrk gS] rks mUgsa Øe'k% fuEu izdkj foÙkh; mUu;u dk ykHk vuqekU; gksxk % & Ø0 ,e0 ,0 lh0 ih0 vuqekU;
i 1st MACP (10 Years) PB-III 5400/-
ii 2nd MACP (20 Years) PB-III, GP 6600/-
iii 3rd MACP (30 Years) PB-III, GP 7600/-
vr,o foÙk foHkkx ds mDr ije'kkZuqlkj ftu i'kqfpfdRldksa dks 31-08-2008 rd ,0lh0ih0 ;kstukUrxZr izFke@f}rh; ,0lh0ih0 dk ykHk Øe'k% osrueku 10]000&15]200@& ,oa 12]000&16]500@& iqujhf{kr osru PB-III, GP 6600/- ,oa PB-III, GP 7600/- Øe'k% izkIr gS] dks ,e0 ,0 lh0 ih0 ;kstukUrxZr 20@30 o"kksZa dh yxkrkj lsok iwjh gksus ds mijkUr vxyk mPprj xzsM osru Øe'k% Rs. 7600/- ,oa Rs. 8700/- vuqekU; gksxkA ¼2½ ,oa oSls i'kqfpfdRld] ftUgsa ,e0,0lh0ih0 ;kstuk ykxw gksus ds i'pkr~ igyh ckj izFke ,e0,0lh0ih0 ¼10 o"kksZa dh lsok ds mijkUr½ fnukad&01-09-2008 ;k muds ckn ds frfFk ls Lohd`r fd;k x;k gS] mUgsa PB-III, GP-5400/- vuqekU; gksxkA ,rn~ lEcU/kr iwoZ esa fuxZr foHkkxh; vf/klwpuk la0&507 fnukad&30-04-2012 bl gn rd la'kksf/kr le>k tk,A English Translation "1(iii) Such Veterinary Doctors who are eligible for first financial upgradation in any of aforesaid period (from 01.09.2008) as a result of implementation of MACP Scheme, then the benefit of financial upgradation shall be admissible to them as follows:-
SI. No. MACP Admissible
i 1st MACP (10 Years) PB-III 5400/-
nd
ii 2 MACP (20 Years) PB-III, G.P. 6600/-
iii 3rd MACP (30 Years) PB-III, G.P. 7600/-
Therefore, as per the above advice of the Finance Department, those Veterinary Doctors who have received the benefit of first/second ACP in pay- scale of Rs. 10,000-15,200/- and 12,000-16,500/-, revised pay PB-III, GP-6600/- and PB-III, GP-7600/- respectively under ACP Scheme up to 31.08.2008, then next higher grade pay of Rs. 7600/- and 8700/- shall be admissible to them after completion of 20/30 years of regular service under MACP Scheme. (2) And after implementation of MACP Scheme, PB-III, G.P. 5400/- shall be admissible to such Veterinary Doctors who have been granted first MACP (after completion of 10 years of service) for the first time on 01.09.2008 or on a later date.
Earlier Departmental Notification No. 507 dated 30.04.2012 issued in this regard shall be deemed to be modified to this extent."
14. In order to examine the plea raised by the appellants before the writ Court, Schedule-I to notification dated 28 th February 2009 which shows the respective pay band and scale of pay is also necessary to be looked into.
6 L.P.A No. 288 of 2015with L.P.A No. 325 of 2015
15. Schedule-I which shows the respective pay band/scale of pay in Pay Band-II and Pay Band-III is extracted below:
PB-II (Rs. 9300-34800) Grade Pay Pay in the Pay Band Total 4200 9300 13500 4600 12540 17140 4800 13350 18150 5400 14880 20280 PB-III (Rs. 15600-39100) Grade Pay Pay in the Pay Band Total 5400 15600 21000 6600 18750 25350 7600 21900 29500
16. It is clear from Schedule-I that under Pay Band-III which provides scale of pay of Rs. 15,600-39,100/- the corresponding scales of pay carry different pay grades - Rs.5400/-, Rs.6600/- and Rs.7600/-. In our opinion, the learned writ Court correctly appreciated the distinction between ACP and MACP schemes and came to a finding that since pay band of the appellants were upgraded from Pay Band-II to Pay Band-III upon grant of 1st MACP they are placed in the pay scale of Rs.15,600-39,100/- with grade pay of Rs.5400/-. We further find from the scheme of notification dated 30th April 2012 read with corrigendum dated 22 nd June 2012 that the second financial upgradation is provided under Pay Band-III in the grade pay of Rs.6600/- and on grant of 3rd MACP the employees in Pay Band-III would be entitled for grade pay of Rs.7600/-.
17. Clause 2(3) of the resolution dated 14 th August 2002 which outlines a scheme of financial upgradation and provides conditions for grant of ACP clearly lays down that the financial upgradation shall be in the pay scale of the next promotional post (izksUurh ds oRrZeku in lksiku). Clause 2(3) provides that the financial upgradation for the stand alone post shall be as per Appendix-I. The relevant paragraphs in the resolution dated 14 th August 2002 which provides the scheme of ACP are extracted below:
"2(3): ;g foRrh; mUu;u lEcfU/kr lsod dks mlds lEoxZ ds fy;s fu/kkZfjr izksUufr ds oRrZeku in lksiku ds osrueku esa feysxk vkSj blds fy;s foRr foHkkx ds ladYi la[;k&660@fo¼2½] fnukad 08&02&1999 ,oa bl Øe esa fuxZr vU; vkns'kksa }kjk Lohd`r osrueku gh izklkafxd gksaxsA tgk¡ izksUufr ds in lksiku fu/kkZfjr ugha gS ;k in lksiku esa nks 7 L.P.A No. 288 of 2015 with L.P.A No. 325 of 2015 ls de izksUufr ds in d.kkZafdr gSa] ogk¡ vuqlwph& I ds vuqlkj mPprj osruekuksa esa foRrh; mUu;u dk ykHk fn;k tk;sxkA 3(X): bl ;kstuk ds vUrZxr foRrh; mUu;u ljdkjh lsod dks mlds lEoxZ ds fy;s fof'k"V :i ls fu/kkZfjr oÙkZeku in J`¡[kyk ds osruekuksa esa feysxk vkSj blds fy;s dksbZ u;k in l`ftr ugha fd;k tk;sxkA ijUrq ,dy in ,oa ,sls in@in lewg@lEoxZ ftlesa fof'k"V :i ls in lksiku ugha cus gq;s gSa vkSj lh/ks jkT; lsok@lEoxZ esa dqN izfr'kr in gh izksUufr gsrq d.kkZafdr gSa] muds lEcU/k esa lEc) ea=ky;@foHkkx }kjk vuqlwph& I esa fufnZ"V osrueku ds rqjUr ckn okys osrueku esa gh foRrh; mUu;u fn;k tk;sxkA"
English Translation "2(3) This financial upgradation shall be granted to the concerned employee in the present pay-scale of his promotional hierarchy of his cadre and for this the Resolution No. 660/Vi.(2) dated 08.02.1999 of the Finance Department and the pay-scale approved by the other order issued in this sequence shall be relevant. Where the hierarchy for promotion is not defined or less than two promotional posts are earmarked in hierarchy then in such cases the benefit of financial upgradation in the higher pay-scale shall be given according to Annexure-1. 3(X) Financial upgradation under the scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/grade of posts without creating new posts for the purpose. However, in case of isolated posts and such group of posts /cadre where there is the absence of defined hierarchical grades and some percent of post is directly earmarked in State service/ cadre, financial upgradation shall be given by the Ministries /Departments concerned in the immediately next higher pay-scales as indicated in Annexure-I."
18. Paragraph no. 2 of Appendix-I to the resolution dated 1st September 2009 indicating the conditions for MACP is extracted below:
"2- ,e0,0lh0ih0 ;kstuk ds vUrxZr foÙkh; mUu;u Øfed xzsM osru dh lwph esa Bhd vxyk mPprj xzsM osru] tks foÙk foHkkx ds ladYi la[;k 660@fo0 fnukad 28-02-2009 dh vuqlwph I esa vuq'kaflr osru cS.M ,oa xszM osru gS] ds vuqlkj ns; gksxkA vr% dqN ekeyksa esa tgk¡ nks Øfed xszMksa ds chp fu;fer izksUufr ugha gS] ogk¡ ,e0,0lh0ih0 ds rgr~ foÙkh; mUu;u ds le; xzsM osru fu;fer izksUufr ds le; miyC/k xszM osru ls vyx gksxkA ,sls ekeyksa esa laoxZ ds inlksiku esa vxyh izksUufr ds in dk mPprj xszM osru fu;fer izksUufr ds le; gh fn;k tk;sxkA"
English Translation "2. The financial upgradation under MACP Scheme is admissible in the immediate next higher grade pay in the list of successive grade pay in the recommended pay bands and grade pay as given in the Schedule-I of the Resolution No.660/Vi. dated 28.02.2009 of Finance Department. Thus, the grade pay at the time of financial upgradation under the MACP can, in certain cases where regular promotion is not available 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 promotional post in the hierarchy of the concerned cadre will be given only at the time of regular promotion."
19. We are in complete agreement with the view taken by the writ Court. The co-employees who were senior to the appellants were given financial upgradation in terms of ACP scheme which was in operation at that time whereas the appellants who became eligible for financial upgradation few years thereafter were covered under MACP scheme and by that time ACP scheme was no longer operative. In "K. Sudheesh Kumar & Ors." the 8 L.P.A No. 288 of 2015 with L.P.A No. 325 of 2015 Hon'ble Supreme Court has affirmed the view taken in "M.V. Mohanan Nair" to hold that MACP scheme has nothing to do with the next promotional post rather what the employees would be entitled to is the immediate next higher grade pay in the hierarchy of the recommended revised pay band and grade pay under the scheme.
20. Ms. Chandana Kumari, the learned counsel for the interveners has also tried to persuade the Court to take a contrary view as expressed by the learned writ Court, but, in view of the judgments in"M.V. Mohanan Nair" and "K. Sudheesh Kumar & Ors." which have authoritatively settled the law on the subject no different view can be taken by the High Court.
21. For the aforesaid reasons, we do not find any merit in L.P.A. No. 288 of 2015 and L.P.A. No. 325 of 2015 which are accordingly dismissed.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) RK/RKM