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"In paragraph 50.45 of their Report, the Fifth Central Pay Commission (FCPC) had recommended the following:-

(ii) the „functional‟ pre-revised pay-scale of `3700-5000 (revised: `12000-16500) applicable to the Superintending Engineers as the first grade on their promotion from the posts of Executive Engineers should instead be „non-functional‟ grade for Executive Engineers in the pre-revised pay-scale of `3000-

4500 (revised: `10000-15200).

14. Aggrieved by the aforesaid, the petitioners have filed the present petition under Article 226 of Constitution of India.

15. In support of the present petition, following 2 submissions were advanced by the learned counsel for the petitioner:-

(I). That condition No.7 of ACP Scheme which prescribes that „financial upgradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts‟ when read in the light of recommendations of the 5th Central Pay Commission regarding introduction of ACP Scheme, which lay down that „on promotion to the next higher grade under the Assured Career Progression Scheme, the full benefit of pay fixation in the higher scale as in case of a promotion in a higher grade shall be given‟, leaves no manner of doubt that ACP Scheme envisages promotion of an employee to the next higher grade. Counsel argued that the 5th Central Pay Commission recommended grant of Non-Functional Grade in the pay-scale of `12000-

16500 to the Executive Engineers who had completed 5 years‟ service in the grade of Executive Engineer to mitigate the hardships caused to the officers due to stagnation. He argued that grant of Non-Functional Grade does not involve higher level of responsibility or any change of command. Such being the position, grant of Non-Functional Grade cannot be construed as promotion of an employee to a higher grade but only his placement in higher pay-scale. Thus, grant of Non-Functional Grade in the pay-scale of `12000-16500 to the Executive Engineers cannot be termed as promotion in next higher grade under ACP Scheme and the department committed an illegality in granting financial upgradation to the Executive Engineers under the ACP in the pay-scale of `12000-16500.

18. The 5th Central Pay Commission recommended grant of Non- Functional Grade in the pay-scale of `12000-16500 to the Executive Engineers on completion of 5 years‟ service in the grade of Executive Engineer in order to mitigate the hardships of stagnation suffered by said Engineers. The 5th Central Pay Commission further recommended that 30% posts of Executive Engineers be upgraded in the „Non-Functional‟ pay-scale of `12000-16500. The said recommendations of the 5th Central Pay Commission were accepted by the Central Government. On September 30, 1997 the Central Government notified the Central Civil Services (Revised Pay) Rules, 1997 and introduced non-functional grade in the pay-scale of `12000-16500 for Executive Engineers. Pertinently, Central Civil Services (Revised Pay) Rules, 1997 were deemed to have come into force with effect from January 01, 1996. Meaning thereby, that the non-functional grade in the pay-scale of `12000-16500 came into „existence‟ in the Group „A‟ Engineering Services including CPWD with effect from January 01, 1996. However, the same i.e. non-functional grade could not be granted immediately to the concerned employees for the grant of same involved restructuring of existing posts of Executive Engineer in Engineering Cadre by re-distributing said posts in Functional and Non-Functional Grades in the pay-scales of `10000-15200 and `12000-16500 respectively in the ratio of 70:30. The restructuring of the posts took some time and finally the Non-Functional Grade in the pay- scale of `12000-16500 was granted to the (eligible) Executive Engineers on March 09, 2002. But the fact remains that the non-functional grade in the pay-scale of `12000-16500 came into „existence‟ in the Group „A‟ Engineering Services including CPWD with effect from January 01, 1996.