Case: Union of India Vs. R.K. Sharma &amp; Ors

2. The Respondent was appointed as Deputy Director in the Bureau of Industrial Costs and Prices in Ministry of Industry, Department of Industrial Policy and Promotion which was subsequently merged with Tariff Commission. He was promoted as Director in grade pay of Rs.3700-125-4700-50-5000 by an order dated 09.02.1994. Certain recommendations were made by the 5th Central Pay Commission relating to the Assured Career Progression Scheme (for short, ACPS) for Central Government civilian employees in all the Ministries/Departments which came into force w.e.f. 01.01.1996. Department of Personnel and Training by a memorandum dated 09.08.1999 directed implementation of the recommendations of the 5th Pay Commission regarding ACPS in respect of Group D, C and B officers and those holding isolated posts in Group A. The relevant conditions that were laid down for grant of benefits under the ACPS are as under: -1. The ACP Scheme envisages merely placement in the higher payscale/grant of financial benefits (through financial upgradation) only to the Government servant concerned on personal basis and shall therefore, neither amount to functional/regular promotion nor would require creation of new posts for the purpose.2. The highest pay-scale upto which the financial upgradation under the Scheme was available was be Rs.14,300-18,300. Beyond this level, there shall be no financial upgradation and higher posts were filled strictly on vacancy based promotions.4. The first financial upgradation under the ACP Scheme shall be allowed after 12 years of regular service and the second financial upgradation after 12 years of regular service from the date of the first financial upgradation subject to fulfillment of prescribed conditions. In other words, if the first upgradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc. this would have consequential effect on the second upgradation which would also get deferred accordingly.5.1. Two financial upgradation under the ACP Scheme in the entire Government service career of an employee shall be counted against regular promotions (including in-situ promotion and fasttrack promotions availed through limited Departmental Competitive Examination) availed from the grade in which an employee was appointed as a direct recruit. This shall mean that two financial upgradation under the ACP Scheme shall be available only if no regular promotions during the prescribed periods (12 and 24 years) have been availed by the employee if an employee has already got one regular promotion he shall qualify for second financial upgradation only on completion of 24 years of regular service under the In case two prior promotions on regular basis have already been received by an employee, no benefit under the ACP Scheme shall accrue to him.In respect of Organized Group A services, the Government has provided non-functional financial upgradation for the officers in PB-3 and PB-4 who are senior by two years or more to IAS officers (in particular grade) but have not so far been promoted to that particular grade because of lack of promotional avenues in Tariff Commission.In respect of General Civil Service Group A officers, whether holding isolated post or not and also for Group B & C employees), the Government has provided financial upgradation by way of extending MACP to the officers who have not been promoted because of lack of upgradation whenever a person has spent 10 years continuously in the same grade. Further three upgradations after 10, 20 and 30 years of service are allowed.(II) The scheme for financial upgradation to Organized Group A services is being implemented for the first time. Similarly, the MACPs scheme will be applicable to him for the first time (he is GCS Group A officer holding a post which is not treated an isolated post, the earlier ACP scheme covered only those GCS Group A officer who were on isolated posts).3. The 6th Central Pay Commission submitted its report on 24th March, 2008 relating to the structure of emoluments, allowances, conditions of services and retirement benefits of the Central Government employees including those belonging to the Union Territories, Members of All India Services, personnel belonging to the Defence Forces, Officers and employees of the Audit and Accounts Departments and Chairpersons and Members of Regulatory Bodies, except the Reserve Bank of India. By a resolution dated 29th August, 2008, recommendations of the Central Pay Commission concerning civilian employees referred to above were accepted by the Central Government with respect to revised scales of pay and dearness allowances w.e.f. 01.01.2006. In so far as the revised allowances, other than the dearness allowance, the effective date according to the memorandum is 1st September, 2008.4. The salient features of the MACPS recommended by the 6th Pay Commission are that three increments shall be granted to the employees on completion of 10, 20 and 30 years of service. According to the scheme of MACP, financial upgradation will be admissible on completion of 10 years of continuous service in the same grade pay.5. On 21.08.2009, a representation was made by the Respondent pointing out the anomalies in the implementation of the MACPS. The grievance of the Respondent was that he was denied the benefit of the MACPS w.e.f. 01.01.2006. As the scheme was made applicable for officers of the organized group A services w.e.f. 01.01.2006, the Respondent requested the Government to extend the benefit to him as well. He preferred another representation on 22.03.2012 reiterating his request made in the earlier representation. There was no response to the representations preferred by him seeking implementation of the MACPS w.e.f. 01.01.2006. Therefore, Respondent filed O.A. No.38 of 2014 in the Central Administrative Tribunal, Principal Bench, New Delhi. The Tribunal dismissed the O.A. filed by the Respondent by its judgment dated 21.02.2017 finding no merit in the claim of the Respondent for the financial upgradation under the MACPS to be granted w.e.f. 01.01.2006. The Respondent challenged the judgment of the Tribunal before the High Court of Delhi by filing Writ Petition No.4760 of 2018. The High Court allowed the Writ Petition and directed the Appellants to grant the second financial upgradation to the Respondent under the MACPS w.e.f. 01.01.2006 by relying upon a judgment of this Court in Union of India & Ors. v. Balbir Singh Turn & Anr (2018) 11 SCC 99 .

Reasoning:
7. For a better understanding of the dispute in these cases, it is necessary to examine the judgments of this Court in Balbir Singh Turn (supra) and M.V. Mohanan Nair (supra). The point that was considered by this Court in Balbir Singh Turn (supra) relates to the applicability of the benefit of MACPS from 01.01.2006. The Respondents therein approached the Armed Forces Tribunal which held that the benefit of ACP granted to an employee is part of the pay structure which affects the pay and also his pension. The Armed Forces Tribunal held that an ACP is not an allowance but a part of pay and therefore, in terms of the Government resolution, the employees were entitled for MACP w.e.f. 01.01.2006. This Court in Balbir Singh Turn (supra) upheld the said finding recorded by the Armed Forces Tribunal. Instructions issued on 30.05.2011 were found to be contrary to the resolution dated 30.08.2008 as, according to the resolution 01.01.2006 was the effective date for implementation of MACPS in matters relating to pay and dearness allowance.8. In M.V. Mohanan Nair (supra) a three Judge Bench of this Court considered the ACPS as well as the MACPS to hold that the schemes are in the nature of incentive schemes which were brought into force to relieve stagnation. This Court was of the considered view that the Respondents therein were entitled only to the benefit of next grade pay in the pay band and not to the benefit of grade pay of next promotional post. As the MACPS is a matter of Government policy pursuant to the recommendations made by the Pay Commission, this Court refused to accept submissions of the employees that MACPS should be made applicable w.e.f. 01.01.2006.9. In view of the judgment of this Court in M.V. Mohanan Nair (supra), the Respondents and other similarly situated employees are entitled for financial upgradation under MACPS only to the next grade pay and not to the grade pay of next promotional post. It is clear from the resolution dated 30.08.2008 that the recommendation of the 6 th Pay Commission was accepted by the Government and was made effective from 01.01.2006 in respect of civilian employees with regard to revised scales of pay and dearness allowances. In so far as the revised allowances other than dearness allowance, recommendation of the 6th Pay Commission were given effect from 01.09.2008. The judgment in M.V. Mohanan Nair (supra) clinches the issue. Benefits flowing from ACP & MACP Schemes are incentives and are not part of pay. The resolution dated 29.08.2008 is made effective from 01.09.2008 for implementation of allowances other than Pay and DA which includes financial upgradation under ACP & MACP Schemes. Therefore, the Respondents and other similarly situated officers are not entitled to seek implementation of the benefits of MACPS w.e.f. 01.01.2006 according to the resolution dated 29.08.2008. Moreover, the implementation of MACPS by granting financial upgradation only to the next grade pay in the pay band and not granting pay of the next promotional post w.e.f. 01.01.2006 would be detrimental to a large number of employees, particularly those who have retired. We find force in the submission made by the learned Additional Solicitor General that uniform implementation of MACPS for civilian employees w.e.f. 01.01.2006 would result in large scale recoveries of amounts paid in excess.