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9. Para 7 & 8 of the judgment of the CAT in Sentimon Mathew (Supra) reads as follows:-

"7.The question that is to be decided is whether remusteration of the applicant as Havildar/Cipher in 1986 from Rifleman was a financial upgradation disentitling the applicant for the grant of first upgradation under the ACP Scheme which is the stand taken by the respondents. The respondents have relied on the instructions issued at point No.8 in the DOPT letter dated 10.2.2000 providing clarifications on the points of doubt raised by the Departments. According to this clarification, no.8, if the relevant Recruitment Rules provide for filling up of vacancies by direct recruitment, induction through limited departmental competitive examination may be treated as direct recruitment for the purpose of benefit under the ACP Scheme. The example given pertains to the cases of Grade-D employees appointed as LDCs or Stenographers Grade- D/Junior Stenographers inducted as LDCs. If the Recruitment rules, on the other hand provide for filling up of the vacancies on the basis of departmental examination, only such appointments shall be treated as promotion. Therefore the respondents contended that in the instant case, as per the Recruitment Rules at Annexure R-4, the post of Havildar is to be filled up by considering members of the Assam Rifles holding the rank of Rifleman in the trade of Operator Radio Line with 8 years service in the grade and not by direct recruitment. As such, the applicant's appointment as Havildar/Cypher has to be treated as promotion. These contentions are not acceptable for the reasons that in the first instance, no departmental examination has been prescribed under the Recruitment Rules and under column 13 thereof regarding constitution of DPC in the case of promotions, it has been clearly indicated that it is 'not applicable' making it clear that the consideration of the members of the Assam Rifles for conversion to Cypher category is not to be considered as 'promotion. Secondly, these Recruitment Rules as averred by the respondents have been issued in the year 2000 only. The applicant had been remustered into Cypher category in 1986. It is therefore evident that these rules were not also applicable at that point of time. It is also noticed that the applicant was remustered to the post of Havildar/Cypher before he had completed even four years of service. Therefore going by all these special circumstances, it has to be concluded that his appointment in the Cypher category can only be termed as 'conversion' and not as 'promotion' as contended by the respondents. This view is buttressed further by the clarification on the ACP Scheme at Annexure A4 communicated by the Ministry of Home Affairs regarding personnel of the Border Security Force (BSF) wherein at points (c) and (d) thereof it has been clearly stated that appointment of Constable (General Duty) after qualifying in the conversion test and appointment into Cypher category will be treated as conversion and promotion. Though the respondents contended that these clarifications were relevant only for BSF personnel, we are not convinced why the same cannot hold good for the personnel in Assam Rifles when the categories being similar and duties and functions are more or less similar though technically they belong to two different organisations. Further as already stated above even the clarification of DOPT dated 10.2.2000 relied on by the respondents and the Recruitment Rules to the post of Havildar do not lend any support to the stand taken by the respondents.

8. In these circumstances we are inclined to subscribe to the view the applicant who was remustered into Cypher category after 4 years of service in 1986, has to be treated as a direct recruit to that category and he would be eligible for the first ACP on completion of 12 years of service the grade.

With such a declaration as above we allow the O.A. The respondents are directed to grant the first financial upgradation in accordance with the ACP Scheme to the applicant together with the consequential benefits. This shall be done within a period of three months from the date of receipt of a copy of this order. No costs."

"Conditions Governing the Grant of MACPS:

10. Service: No MACPS shall be granted to PBOR/Civ emp beyond grade pay of Rs.5400/- in pay band two. There shall be three financial upgradations under the MACPS including promotion, if any, in between from the date of enrolment of an employee on completion of 10, 20 and 30 yrs of continuous service. In case of remustering cats pers from one trade to other will upward change in their pay, the 10, 20 and 30 yrs period shall commence from the date of remustering. Any interruption in service/non-

qualifying service for grant of pension or gratuity shall be excel for commuting 10, 20 and 30 yrs of continuous service. It is further clarified that 10, 20 and 30 yrs period for grant of MACPS shall reckon w.e.f. the date of last upgradation in the grade pay of an employee; it may be by way of erstwhile ACP or promotion/remustering.

11. Performance: The financial upgradation will be on non functional basis subject to fitness in the hierarchy of grade pay within the PB-I, which means that grant of financial upgradation to Rifleman of all cat shall be on the basis of their fitness. The screening committee will presume Rfn of all cat as fit for grant of MACPS to them unless it is otherwise certified by the Commanding Officer as per Appx. 'C' attached to these instructions.