Central Administrative Tribunal - Delhi
Raj Kumar vs M/O Urban Development on 25 March, 2026
Central Administrative Tribunal
Principal Bench,
New Delhi
O.A. No. 2202 of 2018
Orders reserved on: 11.03.2026
Orders pronounced on: 25.03.2026
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Mr. Rajinder Kashyap, Member (A)
1. Raj Kumar, EE (Civil), Group 'A',
Aged about 53 years,
S/o Late Sh. Lachhi Ram,
R/o B-136, Pkt-2, KendriyaVihar,
Sec-82, Noida, U.P.
2. Pawan Kumar Manchanda, EE (Civil), Group 'A',
Aged about 55 years,
S/o Sh. Arjun Dass,
R/o C-263, Golf View Apartments,
Saket, New Delhi.
3. Narender Mahajan, EE (Civil), Group 'A',
Aged about 52 years,
S/o Sh. Muni Lal Mahajan,
R/o B-2/1805, Gardenia Glory,
Sec-46 'B', Noida, U.P.
4. Mohinder Kumar, EE (Civil), Group 'A',
Aged about 53 years,
S/o Sh. Vidya Sagar Bansal,
R/o A-47, Surya Nagar,
Ghaziabad, U.P.
5. Rajesh Kumar Rastogi, EE (Civil), Group 'A',
Aged about 54 years,
S/o Sh. Ram Nath Rastogi,
R/o 121-B, Pkt-F, GTB Enclave,
Opposite GTB Hospital, Delhi-110093.
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6. Baboo Lal Suthar, EE (Civil), Group 'A',
Aged about 55 years,
S/o Sh. Udaram Suthar,
R/o S-1, Siddhi Vinayak Appt-2,
Sec-30, Plot-577/1,
Gandhi Nagar-382030.
7. Deenbandhu Gupta, EE (Civil), Group 'A',
Aged about 52 years,
S/o Late Sh. Chander Sen Gupta,
R/o 407, 1stFloor, Sec-4, Vaishali,
Ghaziabad, U.P.
8. Krishan Kumar Goyal, EE (Civil), Group 'A',
Aged about 55 years,
S/o Late Sh. Lalita Kishore Goyal,
R/o 503, Sec-4, R.K. Puram,
Delhi-110022.
9. Ravinder Kumar Gandhi, EE (Civil), Group 'A',
Aged about 53 years,
S/o Sh. Vas Dev Gandhi,
R/o 5083/2, Modern Housing Complex,
Manimajra, Chandigarh-160101.
10. Rajinder Kumar Sharma, EE (Civil), Group 'A',
Aged about 56 years,
S/o Sh. Sohan Lal,
R/o D-703, New Jyoti Apartment,
Plot-27, Sec-4, Dwarka,
New Delhi-110078.
11. Shivani Kaushal, EE (Civil), Group 'A',
Aged about 55 years,
S/o Sh. Satya Kumar Kaushal,
R/o 1/2998, Ram Nagar, Loni Road,
Shahdara, Delhi-110032.
12. Suresh Pal, EE (Civil), Group 'A',
Aged about 57 years,
S/o Late Sh. Pirthvi Singh,
R/o C-602, FNB Apptt., Sec-4, Plot No. 11,
Dwarka, New Delhi.
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13. Umesh Chander Sachdeva, EE (Civil), Group 'A',
Aged about 52 years,
S/o Sh. S. L. Sachdeva,
R/o H. No. 39, Sec-59, Mohali,
Punjab.
14.Purshottam Goyal, EE (Civil), Group 'A',
Aged about 57 years,
S/o Late Sh. P.C. Goyal,
R/o B-1048, G.F., Green Field Colony,
Faridabad, Haryana-121010.
15. Rajeev Kumar Khanna, EE (Civil), Group 'A',
Aged about 55 years,
S/o Sh. Lajpat Rai Khanna,
R/o 158, Mayur Vihar, Sec-48A,
Chandigarh.
16.Jagdish Ram, EE (Civil), Group 'A',
Aged about 55 years,
S/o Sh. Shri Prakash,
R/o RZ-7A/211, 1-Block, Sagar Pur West,
New Delhi.
17. Ravinder Gupta, EE (Civil), Group 'A',
Aged about 54 years,
S/o Sh. Kapur Chand,
R/o 13, Saraswati Enclave, Sec-9,
Rohini, Delhi.
18. Krishna Kant Saxena, EE (Civil), Group 'A',
Aged about 56 years,
S/o Sh. Ram Bahadur Saxena,
R/o Qtr. No. 7, CPWD Service Centre,
Sec-4, Pushp Vihar, New Delhi-110017.
19.Vinod Kumar Singh, EE (Civil), Group 'A',
Aged about 54 years,
S/o Sh. Babu Lal Singh,
R/o A-28, Sec-40, Noida, U.P.
20. Sukhdeep Singh Bhatia, EE (Civil), Group 'A',
Aged about 54 years,
S/o Late Sh. Iqbal Singh Bhatia,
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R/o 52, Unique Aptt., Sec-13, Rohini,
Delhi-110085.
21. K.R. Ravindran, EE (Civil), Group 'A',
Aged about 53 years,
S/o Sh. C. Kunhi Raman Nambiar,
R/o Flat No. C2-1-02, Hyde Park, Thulsidham,
Thane (W)-400610.
22. Sanjeev Kumar Handa, EE (Civil), Group 'A',
Aged about 54 years,
S/o Sh. W.M. Handa,
R/o A-2/61, Janak Puri,
New Delhi-110058.
23. Surendra Singh Sangwan, EE (Civil), Group 'A',
Aged about 55 years,
S/o Late Sh. Sarup Singh Sangwan,
R/o Flat No. 7, Sec-7, Nirman Parishar,
Vidyadhar Nagar, Jaipur, Rajasthan.
24. Nilabh Gupta, EE (Civil), Group 'A',
Aged about 54 years,
S/o Late Sh. Jagdish Prasad Gupta,
R/o 25, Sadbhavna Apartment, I.P. Extn.,
Delhi-110092.
...Applicants
(By Advocate: Shri M.K. Bhardwaj)
VERSUS
1. The Secretary,
Ministry of Housing & Urban Affairs,
Nirman Bhawan, New Delhi.
2. The Director General,
CPWD, Nirman Bhawan,
New Delhi.
...Respondents
(By Advocate: Shri R.K. Sharma)
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Item No.44/C-1 5 OA No. 2202 of 2018
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):
The applicants are aggrieved by the Letter No. 24/10/2017 EC- III dated 02.04.2018 (Annexure A/1) issued by the respondents vide which they have denied them 3rd Financial Upgradation in Pay Band-3 (Rs.15600-39100) with Grade Pay Rs.7600 under the MACP Scheme. However, according to them, the respondents have wrongly treated their placement in the pay scale of Rs.7500-12000, as a financial upgradation for the purposes of the MACP Scheme. Thus, by filing the present O.A. under Section 19 of the Administrative Tribunals Act, 1985, the applicants are seeking the following reliefs:-
"i. To quash and set aside the impugned letter dated 02.04.2018 and direct the respondents to grant 3rd Financial Upgradation to the applicants in the pay scale of Rs.15600-39100 with grade pay of Rs.7600 from the date of completion of30 years of service as per MACP Scheme dated 19.05.2009.
ii. To declare the action of respondents in not granting the pay scale of Rs. 15600-39100 with grade pay of Rs. 7600 as 3rdFinancial Upgradation as granted to other similarly placed persons namely Sh Sunil Kumar, Sh. Ram Kumar Singh, Sh. Brijesh Bahadur, Sh. Pramod Kumar Gupta, EE (C) and many others as illegal and direct the respondents to grant the 3rdFinancial Upgradation to the applicants in the pay scale of Rs.15600-39100 with grade pay of Rs.7600 from the date of completion of30 years with all arrears of pay along with interest @12%.
iii. To allow the O.A. with costs.
iv. Any other relief which the Hon'ble Tribunal deem fit and
proper may also be granted to the applicants."
FACTS OF THE CASE
2. Brief facts of the case are that the applicants originally entered service as Junior Engineers (JEs) and were subsequently promoted to Assistant Engineers (AEs) between 1993 and 2001. They are filing 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 6 OA No. 2202 of 2018 this O.A. collectively based on a common cause of action and common points of facts and law. Details of applicants' initial appointment and 1st promotion/Financial Upgradation etc. are given herein below:-
Date of Grant of Sl. Date of Joining Date of 1st Name 7500 Scale (1st No. as J.E. Promotion ACP) 1 Raj Kumar 14.10.1985 29.07.1994 01.01.2002 2 Pawan Kumar Manchanda 09.09.1985 30.07.1994 01.01.2001 3 Narender Mahajan 09.12.1985 01.09.1994 01.01.2001 4 Mohinder Kumar 31.07.1985 29.07.1994 01.01.2002 5 Rajesh Kumar Rastogi 20.08.1985 27.08.1994 01.01.2001 6 Baboo Lal Suthar 02.12.1985 29.09.1993 01.01.1998 7 Deenbandhu Gupta 25.07.1985 21.09.1993 01.01.1998 8 Krishan Kumar Goyal 09.09.1985 01.08.1994 01.01.2001 9 Ravinder Kumar Gandhi 17.01.1986 27.09.1993 01.01.1998 10 Rajinder Kumar Sharma 23.09.1985 29.07.1994 01.01.2001 11 Shivani Kaushal 17.08.1985 31.08.1994 01.01.2001 12 Umesh Chander Sachdeva 02.12.1985 27.09.1993 01.01.1998 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 7 OA No. 2202 of 2018 13 Suresh Pal 09.10.1985 29.07.1994 01.01.2001 14 S. S. Bhatia 31.05.1985 20.09.1993 01.01.1998 15 Purushottam Goyal 10.01.1986 19.09.1993 01.01.1998 16 Rajeev Kumar Khanna 22.08.1985 09.08.1999 01.01.2003 17 Jagdish Ram 24.09.1985 01.10.1993 01.01.2000 18 Ravinder Gupta 21.08.1985 29.07.1994 01.01.2002 19 Krishna Kant Saxena 09.12.1985 29.07.1994 01.01.2001 20 Vinod Kumar Singh 23.09.1985 21.10.1993 01.01.1998 21 Nilabh Gupta 11.09.1985 19.09.1993 01.01.1998 22 Sanjeev Kr Handa 13.08.1985 16.02.2001 01.01.2003 23 K. R. Ravindran 15.01.1986 07.09.1994 01.01.2002 24 Surendra Singh Sangwan 29.11.1985 07.10.1993 01.01.1998 2.1 It is stated by the applicants that, as the acute stagnation was prevailing in most of the departments/autonomous bodies of Govt.
of India, therefore, the 5th CPC recommended grant of minimum 2 Financial Upgradation in the pay scale attached to the promotional posts. The said recommendations were accepted and implemented by Govt. of India vide OM dated 09.08.1999 (Annexure A-2), which is known as Assured Career Progress (ACP) Scheme. As per aforesaid Scheme, the Govt. servants who could not get 1/2 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 8 OA No. 2202 of 2018 promotion on completion of 12/24 years of regular service were made entitled for grant of 2 Financial Upgradation in the pay scale attached to the promotional posts.
2.2 It is also stated that the Fifth Central Pay Commission contained in paras 50.54 and 87.22, recommended two pay scales of the Assistant Engineer in CPWD i.e. Rs. 6500-10500 and Rs.7500- 12000, therefore, the same were introduced and were to be granted to the extent of 50% of the posts in each category according to the cadre strength. As a consequence of the aforesaid, the respondents issued Office Order dated 13.05.1998 for grant of aforesaid scale to the eligible AEs as per the cadre strength. The said placement in the pay scale of Rs. 7500-12000 was illegally counted as Financial. Upgradation as per ACP Scheme dated 09.08.1999 and the 2nd Financial Upgradation was denied in the pay scale of Rs. 10000- 15200 attached to the post of EE (C). Being aggrieved by the said illegal act of respondents, one of the similarly placed persons to applicants namely, Sh. F.C. Jain approached this Tribunal by filing OA No. 818/2000. The said OA was allowed by this Tribunal vide Order/Judgment dated 27.09.2000 by holding that the pay scale of Rs. 7500-12000 granted to AE (C) of CPWD could not be treated as Financial Upgradation and accordingly specific directions were issued to grant the aforesaid pay scale of Rs. 7500-12000 from 01.01.1996 and thereafter Financial Upgradation as per OM dated 09.08.1999. The respondents' challenged the aforesaid Order/Judgment of this Tribunal by way of Writ Petition (Civil) No. 4664/2001, titled Union of India and others Vs. F. C. Jain, 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 9 OA No. 2202 of 2018 before the Hon'ble High Court of Delhi wherein raising a specific contention that the grant of higher pay scale of Rs. 7500-12000 to the AEs of CPWD was required to be counted as Financial Upgradation under ACP Scheme. The Hon'ble High Court was pleased to reject the aforesaid contention of respondents by dismissing the said Writ Petition No. 4664/2001 vide Order/Judgment dated 18.04.2002. Thereafter, SLP (being Special Leave to Appeal (Civil) No. 289/2003) was filed to challenge the said Order/Judgment of the Hon'ble Delhi High Court which was also dismissed by the Hon'ble Supreme Court of India vide Order dated/Judgment dated 19.09.2003 (Annexure A-5). 2.3 It is also stated by the applicants that after the dismissal of said SLP, grant of pay scale of Rs. 7500-12000 to 50% of AEs in CPWD till 2003 was treated as placement and all the JEs/AEs were granted 2nd Financial Upgradation under ACP Scheme dated 09.08.1999 irrespective of fact whether the pay scale of Rs. 7500-12000 was granted or not to the said AEs as per the criteria fixed by respondents. Meaning thereby, the issue whether grant of Rs. 7500- 12000 could be treated as Financial Upgradation under Time Bound Scheme or not attained finality for all purposes. 2.4 It is further stated that before the applicants herein could complete 24 years of regular service to get 2nd Financial Upgradation under ACP Scheme in the pay scale of Rs.10000-15200, the Govt. of India notified modified ACP Scheme dated 19.05.2009 and the same was implemented w.e.f. 01.09.2008. As per aforesaid Scheme, the applicants were required to be granted 2nd Financial Upgradation on 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 10 OA No. 2202 of 2018 completion of 20 years of regular service. However, the respondents did not do the needful in case of all the applicants and granted said 2nd Financial Upgradation to some of the applicants, that too from a date different than the date of their entitlement to get the said 2nd Financial Upgradation in the grade pay of Rs. 5400 (PB-2) vide order dated 11.01.2012 (Annexure A-6). Thereafter, the claim of all the applicants was considered for grant of promotion to the post of EE (C) in the pay scale of Rs. 15600-39100 with grade pay of Rs. 6600. The DPC found all the applicants fit for promotion as per RRs and accordingly, the competent authority had promoted all the applicants as EE (C) in the aforesaid pay scale of Rs. 15600-39100 with grade pay of Rs. 6600 during 2009 to 2015 (Annexure A-7 [Colly.]). Details of grant of 2nd financial upgradation (MACP) and actual date of 2nd promotion are given herein below:-
Date of Grant of Date of Promotion as EE (C) in S.No Name 2nd MACP PB-3 (15600-39100, GP 6600) 1 RAJ KUMAR 01.09.2008 16.08.2012 PAWAN KUMAR MAN 2 CHANDA 01.09.2008 16.08.2012 3 NARENDER MAHAJAN NOT GIVEN 16.08.2012 4 MOHINDER KUMAR 01.09.2008 16.08.2012 5 RAJESH KUMAR RASTOGI 01.09.2008 23.05.2011 6 BABOO LAL SUTHAR NOT GIVEN 09.03.2009 7 DEENBANDHU GUPTA 01.09.2008 06.03.2009 8 KRISHAN KUMAR GOYAL NOT GIVEN 16.08.2012 RAVINDER KUMAR 9 GANDHI NOT GIVEN 09.03.2009 RAJINDER KUMAR 10 SHARMA 01.09.2008 24.05.2011 11 SHIVANI KAUSHAL 01.09.2008 23.05.2011 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 11 OA No. 2202 of 2018 UMESH CHANDER 12 SACHDEVA NOT GIVEN 16.03.2009 13 SURESH PAL NOT GIVEN 16.08.2012 14 S.S. BHATIA NOT GIVEN 24.03.2009 15 PURUSHOTTAM GOYAL 01.09.2008 09.03.2009 16 RAJEEV KUMAR KHANNA 01.09.2008 18.05.2015 17 JAG DISH RAM 01.09.2008 16.08.2012 18 RAVINDER GUPTA 01.09.2008 16.08.2012 19 KRISHNA KANT SAXENA 01.09.2008 17.08.2012 20 VINOD KUMAR SINGH NOT GIVEN 02.06.2009 21 NILABH GUPTA NOT GIVEN 01.06.2009 22 SANJEEV KR HANDA 01.09.2008 18.05.2015 23 K.R. RAVINDRAN 01.09.2008 17.08.2012 SURENDRA SINGH 24 SANGWAN 01.09.2009 09.03.2009 2.5 It is also averred that as all the applicants were granted only two promotions as AE (C) & EE (C) and both the Financial Upgradation granted under ACP/MACP Scheme got adjusted on account of aforesaid two promotions, therefore, the respondents were required to grant 3rd Financial Upgradation to the applicants on completion of 30 years of service from the date of appointment as JE. A perusal of dates of appointment mentioned herein above would show that all the applicants, completed 30 years in 2015 & 2016.
2.6 It is further stated that as per MACP Scheme dated 19.05.2009 itself, the respondents were required to convene a meeting of Screening Committee twice in a financial year preferably in the 1st week of January & 1st week of July to consider the claim of eligible officers for grant of Financial Upgradation on completion of 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 12 OA No. 2202 of 2018 10/20/30 years of regular service. However, the respondents did not do the needful in case of applicants. Being aggrieved by the said arbitrary and discriminatory action of respondents, the applicants made repeated representations from April 2015 onwards (Annexure A-8 [Colly.]), the said representations were duly forwarded to competent authority for early action as per MACP Scheme dated 19.05.2009.
2.7 The representation of applicant no. 20, namely, Sh. S.S. Bhatia was considered by ADG (S&P) and not competent authority i.e. D.G. (CPWD) & Secretary, Ministry of Urban Development, as is evident from letter dated 16.12.2015 (Annexure A-9). In the said letter, it has been stated that the said applicant was not entitled for 3rd MACP as he was granted promotion as EE (C) on 18.03.2009.
2.8 Being aggrieved by the aforesaid action taken by incompetent authority, the aforesaid applicant as well as other applicants such as Sh. Raj Kumar applicant no.1 vide letters dated 14.02.2016 and 15.12.2015 (Annexure A-10 [Colly]) respectively again approached the respondents and clarified that the grant of 2nd promotion as EE(C) in 2009 was inconsequential so far as grant of 3rd Financial Upgradation under MACP Scheme was concerned inasmuch as, as per aforesaid scheme three Financial Upgradations were required to be· granted on completion of 10/20/30 years of service. The applicants had completed 30 years of service in 2015 and 2016 itself, therefore, all were required to be granted grade pay of Rs. 7600 on completion of 30 years itself.
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Item No.44/C-1 13 OA No. 2202 of 2018
2.9 In the said letters of Sh. S. S. Bhatia and Sh. Raj Kumar, it was explained that the claim of applicants was required to be considered as per para 2.8 (A) (iii). wherein it has been clearly explained that the 2nd/3rd Financial Upgradation under MACP Scheme are required to be granted on the basis of completion of requisite years of service. If a Government servant gets his first regular promotion on completion of 8 years of service and continues in same grade pay for further 10 years without any promotion then he would be eligible for 2nd financial upgradation under MACP after completion of (8+10) 18 years and however, if he gets 2nd promotion after grant of 2nd MACP then he would get 3rd financial upgradation in the next higher grade pay to the one that of 2nd promotion after completion of 30 years of service. So far as 3rd Financial Upgradation is concerned, the 10/20/30 years period cannot be counted from the date of promotion as the same would lead to anomaly within the same cadre. Meaning thereby, if an official gets 2nd promotion on completion of 16 years of service, he would entitle for 3rd Financial upgradation on completion of 26 years of service, however, if the 2nd promotion is granted on completion of 21 or more than 21 years, then 3rd Financial Upgradation cannot be deferred beyond 30 years. 2.10 However, after receipt of aforesaid representations/letters and other representations submitted by all the applicants, the respondents referred the issue of grant of 3rd Financial Upgradation to applicants herein and other similarly placed persons to DoP&T and on the basis of advise of DoP&T, the respondents rejected the claim of applicants, however, the final order has been communicated 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 14 OA No. 2202 of 2018 only to applicantno.1 vide letter dated 02.04.2018 (Annexure A/1). A perusal of said order/letter dated 02.04.2018 issued in supersession of earlier letter dated 27.02.2018 makes it clear that the respondents have rejected the prayer of applicants for grant of 3rd upgradation on the ground that the applicants were granted scale of Rs. 7500-12000 prior to 2003 and the aforesaid non-functional scale/grade is required to be counted as upgradation as per MACP Scheme dated 19.05.2009.
2.11 It is also stated by the applicant that they were shocked to receive the aforesaid order passed by the respondents inasmuch as the stand taken in the aforesaid order was not only contemptuous, but also violative of DOP&T OM dated 19.05.2009. The issue whether grant of scale of Rs. 7500-12000 could be treated as Financial Upgradation or not, was adjudicated by Hon'ble Supreme Court of India way back in 2003 itself in the case of F.C. Jain (supra) wherein it was held that the grant of scale of Rs. 7500-12000 to the applicants (AEs of CPWD) cannot be counted as Financial upgradation. In the meantime, the Hon'ble High Court of Delhi again examined the said issue as to whether grant of non-functional grade can be counted as Financial Upgradation as per MACP Scheme or not in the case of Hari Ram & Anr. Vs. Registrar General, Delhi High Court (WP (C) No. 9357/2016). A perusal of said judgment would show that the Hon'ble High Court by relying upon the judgment of F.C. Jain (supra) clearly held that grant of non functional grade of Rs. 5400 is dependent on availability of slot, therefore, the same cannot be counted towards Financial 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 15 OA No. 2202 of 2018 Upgradation under MACP Scheme. The case of applicants herein is on a much better footing vis-a-vis a case of Hari Ram & Anr. inasmuch as, the applicants were granted the scale of Rs. 7500- 12000 much prior to notification/implementation of MACP Scheme dated 19.05.2009 and secondly, the said upgradation was directed not to be counted as Upgradation by this Tribunal, Hon'ble High Court as well as Hon'ble Supreme Court of India and the respondents herein issued a letter dated 31.10.2013 (Annexure A-
11) stating therein that the pay scale of Rs. 7500-12000 is a replacement scale of Rs. 6500-10500 given to 50% senior most AEs, therefore, the same cannot be counted as promotion/upgradation under ACP/MACP Scheme.
2.12 It is also stated that the similarly placed persons, who were granted pay scale of Rs. 7500-12000 like applicants herein have been granted 3rd Financial Upgradation in the grade pay of Rs. 7600 without raising any objection as raised in the case of applicants. The said similarly placed persons, namely, Sh. Sunil Kumar, Sh. Ram Kumar Singh, Sh. Yashpal, Sh. Ramji Prasad, Sh. Narayan Prakash Gupta, Sh. Sunil Parashar, Sh. Pramod Kumar Gupta, EE (C) and many others were granted pay scale of Rs.7500-12000 like the applicants herein, still they were granted 3rd Financial Upgradation in the grade pay of Rs.7600 vide order dated 21.12.2017 & 19.01.2018 (Annexure A-12 [Colly]) and Annexure A-13. 2.13 It is thus stated that due to aforesaid arbitrary and discriminatory action of the respondents, anomaly has occurred within the same cadre and amongst similarly placed persons. All the 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 16 OA No. 2202 of 2018 aforesaid persons are reserving as EE (C) and have completed 30 years of service like applicants herein, however, the said similarly placed persons are presently getting salary in the grade pay of Rs. 7600, whereas applicants are getting salary in the grade pay of Rs. 6600.
2.14 It is also stated that in order to bring the aforesaid illegality in the notice of Competent Authority and to get the same settled as per the law of the land, the applicants even sent a legal notice dated 18.04.2018 (Annexure A-14), however, the respondents have even ignored the aforesaid Legal Notice also as till date they have not responded to the said Notice either to applicants or to their counsel. Hence, the applicants have filed this OA seeking the reliefs as quoted above.
3. Pursuant to the notice issued by this Tribunal, the respondents entered appearance and filed their detailed reply contesting the claim of the applicants. The applicants, in turn, have filed a rejoinder, wherein they have controverted and refuted the averments made by the respondents in their reply. CONTENTIONS OF THE APPICANTS
4. Learned counsel for the applicants submitted that the respondents have acted in violation of Articles 14 and 16 of the Constitution of India, inasmuch as they have been deprived of their 3rd Financial Upgradation in the grade pay of Rs. 7600, even after completion of more than 30 years of service and having outstanding service record, whereas other similarly placed persons namely Sh. Sunil Kumar, Sh. Ram Kumar Singh, Sh. Brijesh Bahadur, Sh.
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Item No.44/C-1 17 OA No. 2202 of 2018
Pramod Kumar Gupta, EE (C) and many others have been granted 3rd Financial Upgradation on completion of 30 years of service. 4.1 Learned counsel argued that the stand taken by the respondents in the impugned order/letter dated 02.04.2018 (Annexure A/1) is illegal and contemptuous inasmuch as the same is contrary to the order of this Tribunal, Hon'ble High Court as well as Hon'ble Supreme Court of India in the case of F.C. Jain (supra). As, when this Tribunal held that the pay scale of Rs.7500-12000 cannot be counted towards Financial Upgradation, being 'placement' in the higher scale against the available slot, how could the respondents treat the said scale as upgradation again and make the same basis to deny 3rd Financial Upgradation under MACP Scheme to the applicants. This Tribunal had decided the case of F.C. Jain (OA No. 818/2000) vide Order/Judgment dated 27th September, 2000 and the said Order/Judgment was upheld by the Hon'ble High Court of Delhi in C.W.P. No. 4664 of 2001, vide judgment dated 18th April, 2002, against which S.L.P. No. 289/2003 filed by the Union of India was also rejected on 19th September 2003. 4.2 Learned counsel also argued that the respondents have not only acted in violation of the aforesaid order of this Tribunal dated 27.09.2000, which has been upheld by Hon'ble High Court and Hon'ble Supreme Court of India (supra), but also ignored their own decision contained in letter dated 31.10.2013 (Annexure A-11).The relevant portion of the said letter reads as under:
"i) The pay in the pay scale of Rs. 7500-12000/-may be fixed under FR 22(i)(a)(2).
2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 18 OA No. 2202 of 2018
ii) Bunching in the higher pay scale may be allowed as per decision of the Government for fixing pay as per recommendations of 5thCentral Pay Commission.
iii) The granting of the pay scale of Rs. 7500-12000/- is the replacement scale of Rs. 6500-10500/- given to 50% senior most AE's as per recommendations of 5thCentral Pay Commission. It cannot be treated as a promotion or ACP/MACP."
Learned counsel further submitted that similar clarification has also been issued vide letter No.8/52/2011-EC-III dated 27.11.2015 (Annexure-A-15).
4.3 Learned counsel also submitted that the respondents have failed to appreciate that the MACP Scheme has been implemented w.e.f. 01.09.2008, therefore, the same could not have been made applicable prior to 2008 for any purpose whatsoever. The pay scale of Rs. 7500-12000 granted to the applicants on the basis of decision of Competent Authority way back in 1998 and the grant of said scale was dependent on availability of slot within 50% of the cadre strength of AE (C) and the same was withdrawn from 2003. Furthermore, the respondents on their own have admitted that the scale of Rs. 7500-12000 was replacement scale of Rs. 6500-10500 and cannot be counted as Financial Upgradation, therefore, it is not open for the respondents to treat the same as upgradation in case of applicants for no justification whatsoever. 4.4 Learned counsel also argued that the opinion of the DoP&T quoted in the impugned order is also bad in law as the DoP&T has completely ignored the judgment of this Tribunal as well as Hon'ble Supreme Court of India in the case of F.C. Jain (supra) and also ignored the provisions of MACP Scheme. Even in the MACP Scheme 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 19 OA No. 2202 of 2018 itself, it has been provided that where the scales are merged and promotions become inconsequential, the concerned official is entitled to get Financial Upgradation in the next grade pay. Although in case of applicants the Hon'ble Supreme Court of India itself had held that the grant of scale of Rs. 7500-12000 cannot be counted as upgradation, even otherwise also when the respondents have clearly said that the aforesaid scale of Rs. 7500-12000 was replacement scale of Rs. 6500-10500 attached to the post of AE (C) and all the applicants have been granted only two promotions since inception, they are entitled to get 3rd Financial Upgradation in the next higher grade pay. The grade pay of Rs. 6600 has been granted to the applicants on account of 2nd promotion as EE (C), therefore, they are entitled to next upgradation in the grade pay of Rs. 7600, and the respondents have granted the same to other similarly placed persons promoted as EE (C) like the applicants herein. 4.5 Learned counsel contended that while rejecting the claim of applicants vide impugned order/letter dated 02.04.2018, the respondents have failed to explain as to why and for what reasons the applicants who have been granted only two promotions as AE (C) and EE (C) in the grade pay of Rs. 6600 are not entitled for 3rd Financial Upgradation. The respondents have also failed to give details of 3rd Financial Upgradations/promotions granted to applicants from the date of initial appointment. The applicants have been granted promotion as AE (C) and thereafter as EE (C). So far as 2nd Financial Upgradation under MACP Scheme dated 19.05.2009 is concerned, the same became inconsequential on account of grant of 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 20 OA No. 2202 of 2018 2nd promotion as EE (C) as per provisions of the aforesaid MACP Scheme dated 19.05.2009 itself.
4.6 Learned counsel further submitted that the respondents have also failed to consider that all the applicants have completed 30 years of service from the date of their initial appointment, therefore, they were required to be granted 3rd Financial Upgradation on completion of 30 years, as none of the applicants were facing any disability which could be treated as a bar for grant of 3rd Financial Upgradation, as granted to other similarly placed persons. 4.7 Learned counsel further submitted that the applicants have not been provided copy of DoP&T advice as referred in the impugned order. In fact, the DoP&T has given general observations/opinion as they have used the words like "appears" and "perhaps", and that too without taking note of all the relevant documents/decisions of the respondents and that the judgment of this Tribunal has been upheld by Hon'ble Supreme Court in F. C. Jain (supra). CONTENTIONS OF THE RESPONDENTS
5. Learned counsel for the respondents submitted that applicants have prayed to quash and set aside the impugned letter dated 02.04.2018 and direct the respondents to grant 3rd Financial Upgradation to the applicants in the pay scale of Rs. 15600-39000 with grade pay of Rs. 7600/- from the date of completion of 30 years. However, it is submitted that as per DoP&T's O.M. No. 35034/3/2008-Estt. (D) dated 19.05.2009 (Annexure I), three final upgradations under MACP Scheme are to be given to Central Govt. employees at intervals of 10, 20 and 30 years of continuous 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 21 OA No. 2202 of 2018 regular service. MACP scheme has been implemented w.e.f. 01.09.2008. As per para 28(C) of MACP's, if a government servant has been granted either two regular promotion or 2nd financial upgradation under ACP Scheme of August, 1999 (Annexure II) after completion of 24 years of regular service, then only 3rd financial upgradation would be admissible to him in the next higher grade on completion of 30 years of regular service. Under the MACP's Scheme, after completion of 30 years of regular service in terms of para 8.1 of the Scheme, GP of Rs. 5400/-in PB-2 and GP of Rs. 5400/- in PB-3 will be treated as separate Pays for the purpose of grant of upgradation under MACPs. This implies that any upgradation which could make and effect/impact in the Grade pay has to be treated against one financial upgradation under the MACPS. Accordingly, non-functional scales/grades which were not included in the promotional hierarchy are now countable for the purpose of grant of MACPs benefits. In view of the above, it may be concluded that if the concerned employee has not availed the benefits of Non-Functional Scales of Rs. 7500-12000 then they perhaps eligible for grant of 3rd MACP in terms of the provisions as contained in para-8. Since they availed the benefits of non- functional scale of Rs. 7500-12000/- as per Court's direction, they didn't appear to be eligible for grant of 3rd MACP. 5.1 Learned counsel for the respondents reiterated that as per DoPT's O.M No 35034/3/2008-Estt (D) dated 19.05.2009 (A-1), three financial up-gradations under MACP Scheme are to be given to Central Govt. Civilian employees at intervals of 10, 20 and 30 years 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 22 OA No. 2202 of 2018 of continuous regular service. MACP Scheme has been implemented w.e.f. 01.09.2008 and as per Para 28 (C) of MACP Scheme, if a Govt. servant has been granted either two regular promotion or 2nd financial upgradation under ACP Scheme of August, 1999 after completion of 24 years of regular service, then only 3rd financial up- gradation would be admissible to him in the next grade pay, under MACP Scheme after completion of 30 years of regular service. The date of joining of the applicant No.1 in the grade of JE (present grade pay of Rs. 4200/-) was 14.10.1985. The said applicant No.1 has been given 1st regular promotion on 29.07.1994 in the pay scale of Rs. 2000-EB-75-3200-100-3500 after completion of 9 years of service approximately. The said applicant No.1 had been granted pay-scale of Rs.7500-250-12000/- w.e.f. 01.01.2002 as per direction of this Tribunal and he have been granted Grade Pay of Rs. 4800/- as per 6th CPC w.e.f. 01.01.2006 in the pay scale of Rs.7500-250- 12000/- 2nd MACP has been given on 01.09.2008 in the grade pay of Rs. 5400/- i.e. after completion of 23 years of service (9+ 14 years approx.) an also got 2nd promotion in the grade pay of Rs. 6600/- on 16.08.2012 i.e. after completion of 4 years of service approximately from 2nd MACP (i.e. 23+4 years = 27 years of service). The said applicant's case was sent to the DoP&T through MOHUA for advice. After consideration by DoP&T file was returned with the remarks that:-
"In terms of para 8.1 of the Scheme GP of Rs 5400/- in PB-2 and GP of Rs.5400/- in PB-3 will be treated as separate Grade Pays for the purpose of grant of upgradation under MACPS. This implies that any upgradation which could make and effect/impact in the Grade Pay has to be treated against one financial upgradation under the MACPs. Accordingly, non-functional scales/grades which were not 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 23 OA No. 2202 of 2018 included in the promotional hierarchy are now countable for the purpose of grant of MACPS benefits.
"In view of the above, it may be concluded that if the concerned employee has not availed the benefit of Non-Functional Scales of Rs. 7500-12,000/- then they perhaps eligible for grant of 3rd MACP in terms of the provisions as contained in para 8 above. Since they availed the benefit of Non-Functional Scale of Rs.7500-12000/- as per Court's direction, they don't appear to be eligible for grant of 3rd MACP".
5.2 On receipt of his PG petition file was again sent to DoP&T for advice DoP&T has returned the file with the remarks that:
"In the cadre of Section Officer/Personal Secretary of CSS/CSSS Non-Functional Scale in GP 5400/- in PB-3 is granted to SOS/PSs on completion of 4 years of service. The comments of the Department of Expenditure was solicited in the matter of Section Officers/Personnel Secretary who were not granted the benefit of the pay fixation of NFS under FR 22 (1) (a) (i) be granted 3rd financial up-gradation in the grade pay of Rs.7600/-. The Department of Expenditure vide their ID No.119141/E-III (A)/2013 dated 03.09.2013 has opined that as per provisions of MACP Scheme introduced w.e.f. 01.09.2008, financial up-gradation is admissible in the hierarchy of Grade Pay and the Grade Pay of Rs. 5400/- is very much in the hierarchy of PAs. Thus, if the Grade of Rs.5400/- is not taken into account for the purpose of promotion in the case of Assistant/PAs, it will be in deviation of DoP&T's O.M dated 19.05.2009 and will lead to avoidable repercussions. In view of this, it has not been found feasible by the Department of Expenditure to agree to the proposal.
In terms of Para 8.1 of Annexure-I of MACPs dated 19.05.2009(A-1) every financial upgradation including non- functional grades granted have to be treated as an offset against on financial upgradation under the Scheme".
5.3 Thus, in view of the above guidelines of DoP&T, the applicants are not found eligible for grant of 3rd MACP in the Grade Pay of Rs. 7600/-.
REBUTTAL TO THE CONTENTIONS OF THE
RESPONDENTS
6. In response to the contentions of the respondents, as noted above, learned counsel for the applicants submitted that the respondents have in fact, made contemptuous statement by stating that the non-functional scale of Rs. 7500-12000, which was 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 24 OA No. 2202 of 2018 restricted to the 50% of the total strength of AE cadre would be counted as financial upgradation. The Tribunal as well as Hon'ble Supreme Court clearly ruled in the case of F.C. Jain (supra) that the grant of pay scale of Rs. 7500-12000 could not be counted as financial upgradation under Time Bound Scheme prevailing till 2009. Furthermore, the pay scale of Rs. 7500-12000 was treated as placement and not upgradation and that too upto 2003. The MACP Scheme came on 19.05.2009, therefore, the placement in the pay scale of Rs. 7500-12000, which was lesser than the scale of promotional post, could not have been treated as financial upgradation. Furthermore, when even the grant of higher scale were ignored for the purpose of grant of Financial Upgradation under MACP Scheme, how could the lower scale than the promotional scale of EE (Civil) be counted as upgradation. In the MACP Scheme itself it has been provided that the grant of higher scale which remained lower than the promotional scale are required to be ignored for the purpose of grant of MACP Scheme. All the promotions as well as upgradation in the promotional scale granted till 2006 were directed to be ignored to avoid anomaly and prejudice to all such employees, who were granted the aforesaid promotional scale.
6.1 Learned counsel reiterated that the grant of placement in the scale of Rs. 7500-12000 prior to 2003 cannot be counted as upgradation under MACP Scheme, therefore, the contentions as raised in the reply to count the grant of said scale of Rs. 7500-12000 as an upgradation to deny 3rd Financial Upgradation to the 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 25 OA No. 2202 of 2018 applicants is required to be rejected. Furthermore, the same plea as raised in the case of applicants by the respondents has already been rejected by Hon'ble High Court of Delhi in the case of Hari Ram & Ors. Vs. Delhi High Court (supra). Even the respondents have also not counted the said placement in the scale of Rs. 7500-12000 as they have granted near about 250 similarly placed persons to the applicants 3rd financial upgradation by ignoring the scale of Rs. 7500-12000.
ANALYSIS
7. We have heard learned counsel for the parties and perused the pleadings as well as the judgments on which reliance has been placed.
8. Having heard the parties' counsel, we find that the following issues are to be adjudicated in this case:-
(i) Whether the grant of the pay scale of Rs. 7500-12000 to Assistant Engineers (AEs) in CPWD was merely a placement/non-functional scale or whether it constitutes a financial upgradation/promotion for the purpose of the MACP Scheme dated 19.05.2009?
(ii) Whether the respondents are justified in counting the non-
functional scale of Rs.7500-12000 as a financial upgradation while determining eligibility of the applicants for 3rd MACP (Grade Pay Rs.7600)?
(iii) Whether the denial of 3rd Financial Upgradation to the applicants, despite granting the same benefit to similarly placed 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 26 OA No. 2202 of 2018 officers, is arbitrary and violative of Articles 14 and 16 of the Constitution of India? and
(iv) Whether the applicants, having completed 30 years of regular service with only two regular promotions, are entitled to 3rd MACP in Grade Pay Rs.7600 under the MACP Scheme dated 19.05.2009?
8. So far as issue (i) as mentioned in para 7 above, i.e., whether the grant of the pay scale of Rs.7500-12000 to Assistant Engineers (AEs) in CPWD was merely a placement/non-functional scale or whether it constitutes a financial upgradation/promotion for the purpose of the MACP Scheme dated 19.05.2009, is concerned, we observe that the core dispute in the present OA revolves around the character of the Rs.7500-12000 scale granted to AEs in CPWD. The applicants contended that this scale was not a promotion or financial upgradation, but merely a placement scale recommended by the 5th Central Pay Commission, applicable to 50% of the cadre strength depending upon availability of slots. This issue is no longer res integra, as this Tribunal in F.C. Jain v. Union of India (supra) categorically held that the grant of the scale Rs.7500-12000 to Assistant Engineers cannot be treated as a financial upgradation under the ACP Scheme. The relevant portion of the said judgment reads as under:-
"4. We have considered the rival contentions advanced before us. We have also perused the aforesaid office order of 13.5.1998 at Annexure-1 as also the provisions of the ACP Scheme of August 9, 1999 and we find that the contention raised on behalf of the respondents that employees would be entitled to only one and not both the benefits, is not justified. As far as the employees who have been excluded from the benefit are concerned, they have been specifically mentioned in para 31 of the ACP Scheme. Thereby 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 27 OA No. 2202 of 2018 employees such as casual employees (including those with temporary status), adhoc and contract employees have been excluded Applicant does not fall in any of the aforesaid categories of employees. Vide paras 10and 13 of the conditions of the ACP Scheme it has been provided as under:
"10. Grant of higher pay-scale under the ACP Scheme shall be conditional to the fact that an employee, while accepting the said benefit, shall be deemed to have given his unqualified acceptance for regular promotion on occurrence of vacancy subsequently. In case he refuses to accept the higher post on regular promotion subsequently, he shall be subject to normal debarment for regular promotion as prescribed in the general, instructions in this regard. However, as and when he accepts regular promotion thereafter, he shall become eligible for the second upgradation under the ACP Scheme only after he completes the required eligibility service/period under the ACP Scheme in that higher grade subject to the condition that the period for which he was debarred for regular promotion shall not count for the purpose. For example, if a person has got one financial upgradation after rendering 12 years of regular service and after 2 years therefrom if he refuses regular promotion and is consequently debarred for one year and subsequently, he is promoted to the higher grade on regular basis after completion of 15 years (12+2+ 1) of regular service, he shall be eligible for consideration for the second upgradation under the ACP Scheme only after rendering ten more years in addition to two years of service already rendered by him after the first financial upgradation (2+ 10) in that higher grade i.e. after 25 years (12+2+1+ 10) of regular service the debarment period of one year cannot be taken into account towards the required 12 years of regular service in that higher grade.
13. Existing time-bound promotion schemes, including in-situ promotion scheme, in various Ministries/Departments may, as per choice, continue to be operational for the concerned categories of employees. However, these schemes, shall not run concurrently with the ACP Scheme. The Administrative Ministry/Department not the employees shall have the option in the matter to choose between the two schemes, i.e. existing time bound promotion scheme of the ACP Scheme, for various categories of employees. However, in case of switch over from the existing time-bound promotion scheme to the ACP Scheme, all stipulations (viz. for promotion, redistribution of posts, upgradation involving higher functional duties, etc.) made under the former (existing)scheme would cease to be operative. The ACP Scheme shall have to be adopted in its totality."
5. In our judgement, aforesaid conditions also do not provide that the employees who have received benefit under one scheme will not be entitled to the benefit of the other. Similarly, no such condition is attached to the office order of 13.5.1998 at Annexure-1. In the circumstances, aforesaid contention raised on behalf of the respondents is rejected.
6. Similarly, we find that the office order of 13.5.1998 at Annexure-1 has been issued in terms of the recommendations of the 5thPay Commission. The same has, therefore, to be uniformly adopted alongwith other recommendations with effect from 1.1.1996. The 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 28 OA No. 2202 of 2018 same cannot be made applicable from the date of the office order later issued on 13.5.1998. Applicant, in the circumstances, is held entitled to the pay scale of Rs. 7500-12000 with effect from 1.1.1996.
7. As enumerated above, applicant was engaged as a Junior Engineer with effect from 10.10.1952 and he was promoted as Assistant Engineer on 18.9.1987 which promotion he has accepted. Applicant under the terms of the ACP Scheme would, therefore, be entitled to the benefits thereof after a period of 12 years from the date of his assuming charge as an Assistant Engineer as he has not been promoted for period of 12 years. He will then be entitled to receive upgradation of his pay scale with effect from 18.9.1999.
8. Present O.A, in the circumstances, is allowed. Respondents are now directed to fix the pay of the applicant in the pay scale of Rs.7600-1200 with effect from 1.1.1996 and thereafter grant him upgradation of pay scale with effect from 18.9.1998. Calculating the benefits accruing on the aforesaid basis and to pay him his dues including arrears expeditiously and within period of three months from the date of service of the order. No order as to costs." 8.1 The aforesaid decision of this Tribunal was challenged by the Union of India by filing Writ Petition (Civil) No.4664/2001, titled Union of India and others Vs. F.C. Jain, before the Delhi High Court and the Hon'ble Delhi High Court dismissed the said writ petition vide Order/Judgment dated 18.04.2002, affirming the aforesaid decision of this Tribunal. The relevant portion of which reads as under:-
"7. The respondent herein, who has appeared in person, however, no the other hand, would submit that his claim was based on fitment of pay scale. It was contended that, whereas the ACP Scheme came into force in 1999, he has entitled to a higher pay scale w.e.f. 01.01.1996.
8. It is not in dispute that the respondent was entitled to the benefit of the fitment of pay scale of Rs. 7,500/- Rs. 12,000/-. The said benefit had been granted to the respondent herein with effect from the date when the said Scheme came into force viz 09.08.1999.
9. The relevant provisions of the said ACP Scheme are as under:-
"10. Grant of higher pay-scale under the ACP Scheme shall be conditional to the fact that an employee, while accepting the said benefit, shall be deemed to have given his unqualified acceptance for regular promotion on occurrence of vacancy subsequently. In case he refuses to accept the higher post on regular promotion subsequently, he shall be subject to normal debarment for regular promotion as prescribed in the general instructions in this regard. However, as and when he 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 29 OA No. 2202 of 2018 accepts regular promotion thereafter, he shall become eligible for the second upgradation under the ACP Scheme only after he completes the required eligibility service/ period under the ACP Scheme in that higher grade subject to the condition that the period for which he was debarred for regular promotion shall not count for the purpose. For example, if a persona has got one financial upgradation after rendering 12 years of regular service and after 2 years there from if he refuses regular promotion and is consequently debarred for one year and subsequently he is promoted to the higher grade on regular basis after completion of 15 years (12+2+1) of regular service, he shall be eligible for consideration for the second upgradation under the ACP Scheme only after the first financial upgradation (2+10) in that higher grade, i.e., after 25 years (12+2+1+10) of regular service the debarment period of one year cannot be taken into account towards the required 12 years of regular service in that higher grade;
13. Existing time-bound promotion schemes, including in- situ promotion scheme, in various Ministries/ Departments may, as per choice continue to be operational for the concerned categories of employees. However, these schemes, shall not run concurrently with the ACP Scheme. The Administrative Ministry/ Department - not the employees - shall have the option in the matter to choose between the two schemes, i.e., existing time-bound promotion scheme of the ACP Scheme, for various categories of employees. However, in case of switch-over from the existing time-bound promotion scheme to the ACP Scheme, all stipulations (viz. for promotion, redistribution of posts, upgradation involving higher functional duties, etc.) made under the former (existing) scheme would cease to be operative. The ACP Scheme shall have to be adopted in its totality."
10. It is one thing to say that a person is entitled to a higher scale of pay having regard to the policy decision adopted by the State, but the same has nothing to do with the ACP Scheme, which stand on absolutely different footing.
11. By reason of fitment in the scale of pay, the respondent herein had not been promoted to a higher post or to a higher grade of pay.
12. Para 13 of the ACP Scheme, as referred to hereinbefore, mere excludes its operation only when there exists any time-bound promotion scheme including in-situ promotion scheme.
13. The scope and purport of both the Schemes are absolutely different whereas in terms of the former, the pay scale is revised, which is confined to 50% of the cadre strength; by reason of the ACP Scheme those who are stagnated in a particular post of a particular scale of pay is given higher scale of pay.
14. A beneficial scheme, it is trite, should be construed liberally. Unless and until it is found that by reason of the provisions of the ACP Scheme, the other rule would be inapplicable in a case where the benefit like the Scheme in question had been extended and made, the Respondent cannot be deprived thereof.
2026.03.25
RAVI KANOJIA16:03:29
+05'30'
Item No.44/C-1 30 OA No. 2202 of 2018
15. The submission of the learned counsel appearing for the petitioner cannot also be accepted in view of the fact that the respondent was entitled to the said fitment in the scale of pay w.e.f. 01.01.1996 whereas the ACP Scheme has come into being later on.
16. Furthermore, it is not a case where the respondent herein could have been asked to opt for one of those Schemes, as both the Schemes operate in two different fields.
17. In that view of the matter, we do not find any infirmity in the impugned judgment of the Tribunal. This writ petition is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs."
8.2 The matter was further carried by the Union of India to the Hon'ble Supreme Court by filing SLP being Special Leave to Appeal (Civil) No. 289 of 2003, titled Union of India and others vs. F.C. Jain, which was also dismissed on 19.09.2003, thereby giving finality to the issue. Thus, the judicial position that emerges is that the scale of Rs. 7500-12000 was a placement scale. It was not a promotion. It cannot be treated as financial upgradation under career progression schemes. Therefore, the respondents herein, i.e. CPWD, which was also party in the said case of F.C. Jain (supra) cannot re-characterize the same as a financial upgradation for denying MACP benefits.
9. So far as issue (ii) as mentioned in para 7 above, i.e., whether the respondents are justified in counting the non-functional scale of Rs. 7500-12000 as a financial upgradation while determining eligibility of the applicants for 3rd MACP (Grade Pay Rs.7600), is concerned, we observe that the respondents rely upon DoP&T's OM dated 19.05.2009 introducing the MACP Scheme and argue that any upgradation impacting Grade Pay must be counted as financial upgradation. However, this argument overlooks two crucial aspects, 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 31 OA No. 2202 of 2018 i.e., binding judicial precedent and the administrative instructions cannot override the judicial decisions. Thus, we hold that the respondents cannot ignore the binding judicial pronouncement in F.C. Jain (supra) which had attained finality up to the level of the Hon'ble Supreme Court and the law is well settled that administrative instructions cannot override judicial decisions, as the Hon'ble Supreme Court in Union of India Vs. Kamlakshi Finance Corporation Ltd., reported in 1992 Supp (1) SCC 443, held that the departmental authorities are bound by decisions of higher judicial forums and cannot ignore them on administrative grounds. The relevant portion of the said judgment reads as under:-
"6. Sri Reddy is perhaps right in saying that the officers were not actuated by any mala fides in passing the impugned orders. They perhaps genuinely felt that the claim of the assessee was not tenable and that, if it was accepted, the Revenue would suffer. But what Sri Reddy overlooks is that we are not concerned here with the correctness or otherwise of their conclusion or of any factual mala fides but with the fact that the officers, in reaching their conclusion, by-passed two appellate orders in regard to the same issue which were placed before them, one of the Collector (Appeals) and the other of the Tribunal. The High Court has, in our view, rightly criticised this conduct of the Assistant Collectors and the harassment to the assessee caused by the failure of these officers to give effect to the orders of authorities higher to them in the appellate hierarchy. It cannot be too vehemently emphasised that it is of utmost importance that, in disposing of the quasi-judicial issues before them, revenue officers are bound by the decisions of the appellate authorities. The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not "acceptable" to the department -- in itself an objectionable phrase -- and is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws."
(emphasis supplied) 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 32 OA No. 2202 of 2018 9.1 It is apt to state that the Hon'ble Madhya Pradesh High Court in the case of Jabalpur Bus Operators Association and others Versus State of M.P. and others, reported in 2002 SCC Online MP 631, has observed as under:-
9. In Aramha's case, a Full Bench of three Judges of this Court held that if several decisions of the Supreme Court are irreconciliable the latest pronouncement of the Supreme Court should be followed by the High Court. But in Rudrayya's case, a Division Bench of this Court held that where there are conflicting judgments, one of a larger Bench and another of a smaller Bench of the Supreme Court, the High Court must prefer to follow the decision of a larger Bench. This conclusion was based on the observation in Mattulal v. Radheylal, (1974) 2 SCC 365 : AIR 1974 SC 1596 at p. 1602, wherein, Bhagawati, J., speaking for the Supreme Court observed--
'But whatever be the reason it cannot be gainsaid that it is not possible to reconcile the observations in these two decisions. That being so, we must prefer to follow the decision in Sarvate T.B.'s case as against Kamala Soni's case as the former is a decision of a larger Bench than the latter. Moreover, on principle, the view taken in Sarvate T.B.'s case commends itself to us and we think that is the right view.' In Mumbai Kamgar Sabka v. Abdulbhai, (1976) 3 SCC 832 : AIR 1976 SC 1455 at p. 1467 para 38, Krishna Iyer, J., said:
'Realism dictates that a judgment has to be read, subject to the facts directly presented for consideration and not affecting those matters which may lurk in the record. Whatever be the position of subordinate Court's casual observations, generalisations and sub-silentio determinations must be judiciously read by Courts of co-ordinate jurisdiction......' In Union of India v. K.S. Subramaniam, (1976) 3 SCC 677 : AIR 1976 SC 2433 at p. 2437 para 12, Beg, J. (as he then was) advised the High Courts to follow the practice that has been followed by the Supreme Court whenever there is a conflict between the views expressed by a larger Bench and a smaller Bench of the Supreme Court. The learned Judge said:
'But we do not think that the High Court acted correctly in skirting the views expressed by larger Benches of this Court in the manner in which it had done this. The proper course for a High Court, in such a case, is to try to find out and follow the opinions expressed by larger Benches of this Court in preference to those expressed by smaller Benches of the Court. That is the practice followed by this Court itself, the practice has now crystallized into a rule of law declared by this Court.'
10. It may now be said without contradiction that High Courts should follow the preference to that expressed by a larger Bench in preference to that expressed by a smaller Bench of the Supreme Court, Before adopting this rule, the High Court, if possible, should try to reconcile the diversity of decisions casting away any general observations. General observations do not decide an individual case. The Judges 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 33 OA No. 2202 of 2018 may not agree on general principles and yet reach the same conclusion on the issues before them. It has been said:
'As against persons not parties to the suit, the only part of a case which is conclusive (with the exception of cases relating to status) is the general rule of law for which it is authority. This rule or proposition, the ratio decidendi, may be described roughly as the rule of law applied by and acted on by the Court, or the rule which the Court regarded as governing the case.' Judged from these principles, Aramha's case can no longer be said to be valid and therefore, stands overruled." Finally in Paragraph 11, it is said that--
"11. But the difficulty may still arise for the High Court when confronted with two inconsistent decisions of the Supreme Court by Benches consisting of equal number of Judges. Both cannot be said to be binding on Courts. But the choice is still more difficult as there is no firm general rule on the principle of precedent. The learned Chief Justice has opined that, in such a case the later of the two decisions should be followed by the High Court and other Courts. This practice, according to us, is neither a rule of propriety nor a rule to promote justice. It may be a convenient rule to promote consistency and avoid uncertainty. If it is meant to promote consistency in the administration of justice, we may as well ask the question, why not the High Court follow the former of the two rulings when both of them are of equal sanctity. Why alone the later carries the obligation and not the former? The adherence to one practice would be as good or as bad as adherence to the other.
In our view, a conservative approach to any of these, may deny justice in a given case or series of cases and those clients may not be in a position to approach the Supreme Court for the redressal of their grievances. When confronted with two inconsistent co- ordinate authorities, Kay, J., in Miles v. Jarvis, (1883) 24 Ch. D 633 at p. 636 said:
'...... The question is which of these two decisions I should follow, and it seems to me that I ought to follow that of the Master of the Rolls as being, the better in point of law." Jessel M.R. in a like circumstance said in Baker v. White, (1877) 5 Ch. D 183 at p. 190 that he was left with liberty to say which was not sound law. It seems to us, therefore, the High Court would be well advised to consider which of two conflicting decisions it will follow in the interest of the administration of justice and it ought to follow that which is better in point of law than in point of time."
Full Bench of Punjab High Court in Indo Swiss Time Limited, Dundahera v. Umrao, AIR 1981 Punjab and Haryana 213 expresses the view similar to the minority view in Govindnaik's case (Karnataka) (supra). Pertinent it is to quote the following paragraphs from the judgment:--
"22. A perusal of the judgments in the Municipal Corporation of the City of Ahmedabad, (1970) 1 SCWR 183 and Himalaya Tiles (1980) 3 SCC 223 : AIR 1980 SC 1118 cases would plainly indicate that there is a direct conflict on the point therein. Both the judgments have been rendered by a Bench consisting of two Hon'ble Judges and cannot possibly be reconciled. This situation at once brings to the fore the somewhat intricate question which is now not of infrequent occurrence, namely ...... 'when there is a 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 34 OA No. 2202 of 2018 direct conflict between two decisions of the Supreme Court rendered by co-equal Benches, which of them should be followed by the High Court and the Courts below'.
23. Now the contention that the latest judgment of a co-ordinate Bench is to be mechanically followed and must have pre- eminence irrespective of any other consideration does not commend itself to me. When judgments of the Superior Court are of co-equal Benches and therefore of matching authority then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the Superior Court and of equal authority are extant than both of them cannot be binding on the Courts below. Inevitably a choice, though a difficult one, has to be made in such a situation. On principle it appears to me that the High Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. The mere incidence of time whether the judgments of coequal Benches of the Superior Court are earlier or later is a consideration which appears to me as hardly relevant.
24. The view I am inclined to take has the support of the high authority of Jessel M.R. in Hampton v. Holman, (1877) 5 Ch. D
183. Therein also the learned Master of the Rolls was faced with the difficult task of choosing between the two decisions of equal authority which were directly in conflict with each other. He observed as follows:--
'Now I take it that both the cases to which I have referred are not to be reconciled with Hayes v. Hayes (1828) 38 ER 822; at all events, they differ from it so far as to leave me at liberty now to say that Hayes v. Hayes is not sound law; indeed it appears that Sir John Leach himself was dissatisfied with his decision.' Again in Miles v. Jarvis, (1833) 24 Ch. D 633, Kay, J., was similarly faced with two judgments of equal weight which were in conflict. He observed as follows:--
'......... The question is which of these two decisions I should follow and it seems to me that I ought to follow that of the Master of the Rolls as being the better in point of law.' Reference in this context may in particular be made to the celebrated case of Young v. Bristol Aeroplane Co. Ltd. (1944) KB 718. Therein in a similar context of the Court of appeal being bound by its previous decisions it was held that it was not only entitled but indeed duty bound to decide which of the two conflicting decisions of its own will it follow in case of a clear divergence of the opinion in the earlier precedents."
9.2 Further, with regard to the question whether an executive order which goes against the statutory rules can survive, the Hon'ble 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 35 OA No. 2202 of 2018 Supreme Court in Ex. Capt. K. Balasubramanian's case, reported ((1991) 2 SCC, held that the administrative instructions cannot alter or supersede the statutory rules. Therein, the express provisions contained in the statutory rules for fixing the seniority of certain posts, was sought to be altered by administrative instructions without any corresponding amendment to the rules. Further, in T. N. Housing Board Vs. N. Balasubramanium & Ors., reported in (2004) 6 SCC 85, wherein also the same question was considered, as therein also, the statutory regulations were sought to be supplemented by certain executive instructions. It was found that it will change the criteria itself. In para 6 it was held thus:
"Once it is held that relying on the basis of the executive instructions in terms of Regulation 28(a), the Draftsmen who have been getting higher salary are given preference over the diploma- holder Junior Engineers, the eligibility criteria contained in the statutory Regulations would become otiose; the logical corollarythereof would be that the executive instructions would prevail over the statutory Regulations. Such a consequence would lead to an absurdity and in that view of the matter it must be held that the executive instructions cannot be given effect to."
9.3 The Constitution Bench of the Hon'ble Supreme Court in Sant Ram Sharma Vs. State of Rajasthan, reported in AIR 1967 SC 1910, has pointed out that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. 9.4 Thus, the respondents' reliance upon DoP&T's advice cannot override the judicial determination regarding the character of the 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 36 OA No. 2202 of 2018 pay scale of Rs. 7500-12000 so far as the respondents' department is concerned.
9.5 At this stage, it is apt to state that the respondents themselves issued clarification dated 31.10.2013 (Annexure A-11), which reads as under
"The granting of the pay scale of Rs.7500-12000 is the replacement scale of Rs.6500-10500 given to 50% senior- most AEs and cannot be treated as promotion or ACP/MACP."
9.6 Having taken such a stand earlier, the respondents cannot adopt a contradictory position. The Hon'ble Supreme Court has repeatedly held that the Government cannot approbate and reprobate simultaneously.
10. So far as issue (iii) as mentioned in para 7 above, i.e., whetherthe denial of 3rd Financial Upgradation to the applicants, despite granting the same benefit to similarly placed officers, is arbitrary and violative of Articles 14 and 16 of the Constitution of India, is concerned, the applicants have specifically pleaded that several similarly placed officers such as Sh. Sunil Kumar, Sh. Ram Kumar Singh, Sh. Pramod Kumar Gupta, and Sh. Narayan Prakash Gupta have already been granted 3rd MACP with Grade Pay Rs. 7600 despite having received the same scale of Rs. 7500-12000 earlier. On this aspect, the respondents in their counter reply have not averred at all. The Hon'ble Supreme Court in Maneka Gandhi Vs. Union of India, reported in (1978) 1 SCC 248 and E.P. Royappa Vs. State of Tamil Nadu, reported in 1974 AIR 555, held that arbitrariness is antithetical to equality under Articles 14 and 16 of 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 37 OA No. 2202 of 2018 the Constitution of India. Similarly, the Hon'ble Supreme Court in State of Karnataka Vs. C. Lalitha, reported in (2006) 2 SCC 747, held that 'Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently.' 10.1 In the present case, the respondents have failed to provide any rational basis for granting MACP benefits to some officers while denying the same to the applicants. Thus, the action of the respondents appears to be arbitrary and discriminatory.
11. So far as issue (iv) as mentioned in para 7 above, i.e., whether the applicants, having completed 30 years of regular service with only two regular promotions, are entitled to 3rd MACP in Grade Pay ₹ 7600 under the MACP Scheme dated 19.05.2009 is concerned, we observe that under the MACP Scheme dated 19.05.2009, a Government servant is entitled to three financial upgradations after completion of 10, 20 and 30 years of service, if he has not received equivalent promotions. In the present case, the applicants joined as Junior Engineers during 1985-1986, they received first promotion as Assistant Engineer and they later received second promotion as Executive Engineer. Thus, they have received only two promotions. Once the placement scale of Rs.7500-12000 is excluded, as held in F.C. Jain (supra) the applicants have received only two career advancements. Therefore, 2026.03.25 RAVI KANOJIA16:03:29 +05'30' Item No.44/C-1 38 OA No. 2202 of 2018 upon completion of 30 years of service in the relevant year, they became eligible for 3rd MACP in the next higher grade pay i.e. Rs. 7600. The denial of this benefit is, therefore, contrary to the MACP Scheme itself.
12. In the result, for the forgoing reasons, the present O.A. is allowed in terms of the following directions:-
(i) the impugned order dated 02.04.2018 (Annexure A/1) is quashed and set aside;
(ii) the respondents are directed to consider the case of the applicants for grant of 3rd Financial Upgradation in the pay scale of Rs. 15600-39100 with Grade Pay of Rs. 7600 from the date of completion of 30 years of service as per MACP Scheme keeping in view the observations made hereinabove;
(iii) The respondents are directed to comply with the above directions as early as possible, and preferably within a period of four weeks from the date of receipt of a certified copy of this Order.
13. There shall be no order as to costs.
14. Pending MA(s), if any, also stand disposed of accordingly.
(Rajinder Kashyap) (Justice Ranjit More)
Member (A) Chairman
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