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14. Per contra, under the MACP Scheme, financial upgradation is granted in the next higher Grade Pay in the hierarchy of the recommended Pay Bands and Grade Pay as given in Section-1, Part-A of the First Schedule of CCS (Revised Pay) Rules, 2008.

Under the MACP Scheme, the financial upgradation would be on non-functional basis subject to fitness in the hierarchy of Grade Pay. MACP Scheme contemplates merely placement on personal basis in the immediate higher Grade Pay/grant of financial benefits only and shall not amount to actual/functional promotion of the employees concerned (vide para (19) of the MACP Scheme). In terms of para (20) of MACP Scheme, financial  upgradation under the MACP Scheme shall be purely personal to the employees and shall have no relevance to the seniority position. As such there shall be no additional financial upgradation for the senior employees on the ground that the junior employee in the grade has got higher pay/higher Grade Pay under MACP Scheme (vide para (20) of the MACP Scheme).

21. Mr. Jaideep Gupta, learned amicus assisted by Kunal Chatterji submitted that the object and purpose of the 1999 ACP was to mitigate hardship in case of acute stagnation either in a cadre or in an isolated post and MACP scheme of 2009 is also for the same purpose and grant of financial upgradation under MACP scheme is only continuation of the existing scheme with certain modifications. Learned amicus further submitted financial upgradation which is granted under the ACP and MACP both involve fixation/refixation of pay and allowance which become the basis of the fixation of pay and allowances for the rest of the career of the employee concerned and such financial upgradation is not merely a special allowance which can be granted or taken back at the will of the employer. Learned amicus has submitted that MACP scheme linked to the grade pay should not be taken into consideration and MACP scheme should be interpreted to mean that financial upgradation has to be granted to the grade pay of the next promotional post and not to the next grade pay in the Schedule I to the CCS (Revision of Pay) Rules. Learned amicus urged the Court to adopt a purposive interpretation of the MACP scheme to grant financial upgradation in the next promotional hierarchy as in the erstwhile ACP scheme. It was contended that if financial upgradation is granted in the hierarchy of grade pay then MACP scheme would lead to a discriminatory treatment violating Article 14 of the Constitution of India. In this regard, learned amicus has drawn the attention of the Court to the discussion of the Joint Committee of MACP scheme held under the Chairmanship of the Joint Secretary (E) of the Department of Personnel and Training on 06.10.2010.

27. The learned amicus and the learned counsel appearing for the respondents urged the court to adopt a “purposive interpretation” that the words “immediate next higher Grade Pay” to be interpreted as “Grade Pay of the next promotional post” in the hierarchy. MACP Scheme envisages merely placement in the immediate next higher Grade Pay. By perusal of the MACP Scheme extracted earlier, it is seen that the words used in the Scheme are “placement in the immediate next higher Grade Pay in the hierarchy of the recommended revised pay bands”. The term “Grade Pay in the next promotional post” is conspicuously absent in the entire body of the MACP Scheme. The argument of the respondents that the benefit of MACP Scheme is referable to the promotional post, is de hors the MACP Scheme and cannot be accepted. Though ACP and MACP Schemes are intended to provide relief against stagnation, both the Schemes have different features. Pay scales under the Sixth Pay Commission and the MACP Scheme are stated to be more beneficial since it extends to the employees with time intervals with higher pay bands and various facilities which were not available under the ACP Scheme including the three financial upgradations in shorter time span. In any event, MACP Scheme has not been challenged by the respondents. As rightly contended by the learned ASG, the respondents cannot be permitted to cherry-pick beneficial features from the erstwhile ACP Scheme and also take advantage of the beneficial features in the MACP Scheme.

48. 3rd Meeting of the Joint Committee dated 15.03.2011:- In the 3rd Meeting of the Joint Committee held on 15.03.2011, the staff side reiterated their demand that the MACP Scheme should be granted in the promotional hierarchy of posts rather than in the grade pay hierarchy. The official side had suggested that the Government was willing to consider a revision in the MACP Scheme to the effect that organisations/cadres shall have the option to choose either the ACP Scheme or the MACP Scheme. But the staff side stated that such a dispensation would not be practical and there was a need to explore other alternatives to solve the issue. Therefore, it was agreed between the staff side and the official side that there was no need to change the basic structure of MACP Scheme, but there was a need to separately examine those cases where MACP Scheme was less advantageous than the ACP Scheme (Vide the Minutes of the 3 rd Meeting of Joint Committee dated 15.03.2011). Pursuant to the decision of the 3rd Meeting of Joint Committee, it was decided that the official side would write to the Ministry of Railways, Defence, Urban Development, Home Affairs and the Department of Posts to forward information in respect of the specific categories of employees where the MACP was less advantageous than the erstwhile ACP Scheme. Accordingly, these Ministries/Departments were requested to send specific cases wherein, it was less advantageous for employees under MACP Scheme as compared to ACP Scheme. It is stated that no Ministry/Department other than Ministry of Urban Development had responded. (Vide Copy of Minutes dated 15.03.2011)