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2025 DIGILAW 107 (KER)

Shaji T. S/o Late Thankappan v. Union Of India

2025-01-23

VIJU ABRAHAM

body2025
JUDGMENT : The above writ petition is filed challenging Exts.P7 order and for a direction to the 3 rd respondent to grant 2 nd financial upgradation under ACPS to the petitioners in the scale of PB 2 with grade pay of Rs.4,200/- with effect from the date of completion of 24 years. 2. Petitioners who are retired from General Reserve Engineer Force (GREF) during 2016-2022, have approached this Court aggrieved by the anomaly that was crept in the grant of 2 nd financial upgradation to the next grade pay in MACP scheme instead of scale of pay attached to the next higher post in the hierarchy under Assured Career Progression Scheme (hereinafter referred to as ‘ACP Scheme’). The service particulars of the petitioners given in the tabular form in the writ petition as Schedule A are as follows: S N o. Petitioner Date of Joining 1st ACP Date of completion of 24 years Date of Retirement 1 Shaji T 07.11.84 09.08.99 07.11.2008 31.07.2022 2 Varghese P M 19.09.84 09.08.99 19.09.2008 31.05.2019 3 M.K.Vamanan 25.09.84 09.08.99 25.09.2008 31.12.2019 4 J Baburajan 11.10.84 09.08.99 11.10.2008 01.09.2021 5 Soman V 07.11.84 09.08.99 07.11.2008 30.04.2020 6 Vinaya Kumar K 07.11.84 09.08.99 07.11.2008 30.04.2022 7 M Kamalasanan 07.11.84 09.08.99 07.11.2008 01.03.2016 8 Mohanan K 10.11.84 09.08.99 10.11.2008 31.07.2022 9 T.Surendran 16.11.84 09.08.99 16.11.2008 30.09.2019 10 Gopakumaran K P 16.11.84 09.08.99 16.11.2008 01.05.2016 11 Divakaran K E 11.01.85 09.08.99 11.01.2009 30.04.2019 12 Pavithran A 18.01.85 09.08.99 18.01.2009 01.10.2018 13 K Sudhakaran 01.05.85 09.08.99 01.05.2009 31.05.2022 14 Reji Kumar 11.10.84 09.08.99 11.10.2008 31.05.2021 The Government introduced Ext.P1 ACP Scheme as per OM No.35034/1/97-Rstt(D) dated 09.08.1999 inter alia providing that the employees who are stagnated are eligible for two financial upgradation at the interval of 12 and 24 years. Ext.P1 scheme specifically provided under paragraph 7 that financial upgradation is granted to next higher grade in accordance with the existing hierarchy in a cadre/category of post without creating new post for the purpose. The scheme further provided that financial upgradation under ACP Scheme shall be purely personal to the employee and shall have no relevance in his seniority position. Ext.P1 scheme specifically provided under paragraph 7 that financial upgradation is granted to next higher grade in accordance with the existing hierarchy in a cadre/category of post without creating new post for the purpose. The scheme further provided that financial upgradation under ACP Scheme shall be purely personal to the employee and shall have no relevance in his seniority position. It is the case of the petitioners that they were given 1 st financial upgradation under Ext.P1 ACP Scheme and the petitioners who were in the scale of pay of LDC which carried a scale of pay of Rs.3050-4590 as per 5 th CPC were given scale of pay of Rs.4000-6000 attached to the post of UDC. When the 6 th pay commission regime came into force which was introduced with effect from 01.01.2006 a pay band system was introduced corresponding to the pre-existing scale of pay. While so the petitioners have completed 24 years of service and they become eligible for the 2 nd financial upgradation under Ext.P1 scheme and the details of date of completion of 24 years of service of the petitioners are detailed in Schedule C in the writ petition, which is extracted below: S N o. Petitioners Date of completion of 24 years 1 Shaji T 07.11.2008 2 Varghese P M 19.09.2008 3 M.K.Vamanan 25.09.2008 4 J Baburajan 11.10.2008 5 Soman V 07.11.2008 6 Vinaya Kumar K 07.11.2008 7 M Kamalasanan 07.11.2008 8 Mohanan K 10.11.2008 9 T.Surendran 16.11.2008 10 Gopakumaran K P 16.11.2008 11 Divakaran K E 11.01.2009 12 Pavithran A 18.01.2009 13 K Sudhakaran 01.05.2009 14 Reji Kumar 11.10.2008 While so the Government of India introduced Ext.P2 Modified Assured Career Progression Scheme (hereinafter referred to as ‘MACP Scheme’) as per OM No.35034/3/2008-Estt(D) dated 19.05.2009. As per the provisions of the MACP Scheme appended to the abovesaid Office Memorandum financial upgradation are admissible when a person spent 10 years continuously in the same grade pay and the scheme envisages only placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as per CCS (Revised Pay) Rules, 2008. It is the contention of the petitioners that as per the ACP Scheme financial upgradation is given to the scale of pay attached to the next post in the hierarchy while in MACP Scheme it gives only financial upgradation to the next grade pay of the existing pay band. Petitioners would contend that Ext.P2 MACP Scheme introduced as per Office Memorandum dated 19.05.2009 has been given retrospective effect with effect from 01.09.2008 as per paragraph 9 of Ext.P2 Office Memorandum. It is the case of the petitioners that by giving retrospective effect the vested right of the petitioners as per Ext.P1 ACP Scheme to draw the scale of pay of the post in the hierarchy is deprived and the benefit has been reduced to mere upgradation to the next grade pay in the pay band which results in substantial monetary loss to the petitioners. It is contended that the retrospective operation of any rule or regulation or scheme shall not take away the vested rights of the employees like the petitioners. The petitioners who are entitled to get financial upgradation to the scale of pay attached to the next post in the hierarchy under ACP Scheme were denied the same due to retro application of the MACP Scheme and the petitioners will be placed only in the next grade pay in the pay band and the benefit is very minimal. Petitioners submit that due to the same they are suffering substantial reduction in the total emoluments that they were entitled to as per the ACP Scheme. Thereupon a representation in the nature of Ext.P4 was submitted by the petitioners before the 2 nd respondent requesting to redress their grievance. While so the High Court of Karnataka has considered similar matters in W.P. Nos.24894-24908 of 2016 and as per Ext.P5 judgment held that the vested right of the individuals who have completed 24 years before the date of Ext.P2 to claim the scale of pay attached to the promotion post cannot be taken away as it will amount to taking away their vested right with retrospective effect. Though an appeal was preferred against the same before the Apex Court as SLP No.29605 of 2017 the same was dismissed as per Ext.P6 order dated 27.01.2020. Though an appeal was preferred against the same before the Apex Court as SLP No.29605 of 2017 the same was dismissed as per Ext.P6 order dated 27.01.2020. It is the contention of the petitioners that in the light of Ext.P5 judgment of the High Court of Karnataka and the dismissal of the SLP challenging the same as per Ext.P6 the issue has been fully settled in favour of the petitioners. But the request made by the petitioners has been rejected by Ext.P7 order taking a stand that the decision of the Central Administrative Tribunal is applicable to the petitioners therein and not applicable to GREF. It is aggrieved by the same that the present writ petition has been filed. 3. A detailed counter affidavit has been filed by respondents wherein it is stated that ACP Scheme was introduced to provide financial upgradation to Government employees whose pay was stagnated due to non-availability of promotion opportunities and two financial upgradation was permitted as per ACP Scheme, ie., on completion of 12 years and 24 years of service from the date of initial appointment. Later ACP Scheme was replaced by MACP Scheme and as per the said scheme an employee on completion of 10, 20 and 30 years of service three increments will be granted to them and going by the present scheme financial upgradation is admissible on completion of 10 years of continuous service in the same grade pay. Since the orders for accepting the recommendation of Pay Commission were issued by the Government on 29.08.2008 the applicability of ACP Scheme was limited upto 31.08.2008 and the same was replaced by MACP Scheme which came into existence with effect from 01.09.2008. It is contended that on introduction of MACP Scheme the petitioners were given 2 nd MACP benefits on 01.09.2008 itself as provided in the scheme. It is further contended that the Government as per Ext.R1(a) resolution dated 29.08.2008 accepted the recommendation of the 6 th Pay Commission and implemented the same with effect from 01.01.2006 with regard to the revised scale of pay and dearness allowance. Since the benefits flowing from ACP and MACP Schemes are incentives and are not part of pay, the effective date for implementation of the allowances other than pay and dearness allowance which also included financial upgradation under MACP Scheme were given effect from 01.09.2008. Since the benefits flowing from ACP and MACP Schemes are incentives and are not part of pay, the effective date for implementation of the allowances other than pay and dearness allowance which also included financial upgradation under MACP Scheme were given effect from 01.09.2008. It is contended that the petitioners have all completed 24 years after 01.09.2008, the date on which the MACP Scheme was given effect to. 4. I have heard the rival contentions of both sides. 5. Essentially the contention raised by the petitioners is that they are entitled for financial upgradation after completion of 24 years as per the old ACP Scheme in as much as the MACP Scheme dated 19.05.2009 was introduced after they have completed 24 years, though the scheme was given effect from 01.09.2008. The petitioners would contend that the High Court of Karnataka as per Ext.P5 has considered similar issues and held that paragraph 9 of the O.M. dated 19.05.2009 in so far as it makes MACP Scheme applicable to the petitioners with effect from 01.09.2008 is bad and declared that the petitioners therein are entitled for consideration of grant of 2 nd ACP benefits in terms of erstwhile ACP Scheme (OM dated 09.08.1999). Further contention of the petitioners is that though an appeal was preferred as SLP No.29605 of 2017 the same was dismissed as per Ext.P6 order dated 27.01.2020. But the crucial aspect to be noted is that while dismissing the SLP as per Ext.P6 order the Apex Court has left open the question of law. 6. Since in Ext.P6 order the question of law was kept open, this Court has to consider the claim of the petitioners on the basis of the subsequent judgments of the Apex Court. In Vice Chairman Delhi Development Authority v. Narender Kumar , 2022 KHC OnLine 6265 a similar issue was considered and held in paragraphs 36 and 37 as follows: “36. The employees in this case approached the High Court, complaining that their vested right, which was the assumed entitlement to be given by second ACP, was taken away by the MACP, introduced with effect from 01-09-2008, by an order dated 19-05-2009. No doubt, the MACP scheme is an executive order. Usually, such orders are expressed to be prospective. The employees in this case approached the High Court, complaining that their vested right, which was the assumed entitlement to be given by second ACP, was taken away by the MACP, introduced with effect from 01-09-2008, by an order dated 19-05-2009. No doubt, the MACP scheme is an executive order. Usually, such orders are expressed to be prospective. However, the executive has the option of giving effect to such an order, from an anterior date; especially if it confers some advantages or benefits to a sizeable section of its employees, as in this case. The nature of benefits- as emphasized by this court earlier, were by way of incentives. They are not embodied under rules. In such circumstances, a set of employees, who might have benefited from the then prevailing regime or policy, cannot in the absence of strong and unequivocal indications in the later policy (which might be given effect to from an anterior date, like in this case), insist that they have a right to be given the benefits under the superseded policy. It is noteworthy that a larger section of employees would benefit from the MACP benefits, because they are to be given after 10-, 20- and 30-years’ service (as compared with two benefits, falling due after 12 and 24 years of service) and further that such benefits under MACP scheme are subjected to less rigorous eligibility requirements, than under the ACP scheme. 37. The myriad intricate details which the executive has to consider, while framing a scheme applicable generally, to a large section of the employees, may not always admit of one, or one set of solutions. To insist that a particular kind of benefit, hitherto applicable, should be continued for a set of employees, while the others should be governed by another, new set or scheme, would be imposing a significant burden on the administration, apart from swelling financial costs as well as administrative energies. Such directions would result in creating different time warps, rendering efficient administration of personnel policies impracticable. Sans palpable or facial arbitrariness, the courts should be circumspect in adding conditions, or tampering with such arrangements. In Ajoy Kumar Banerjee v. Union of India 1984 (3) SCR 252 a five judge Bench of this court had emphasized this aspect in the following terms: “46…. Sans palpable or facial arbitrariness, the courts should be circumspect in adding conditions, or tampering with such arrangements. In Ajoy Kumar Banerjee v. Union of India 1984 (3) SCR 252 a five judge Bench of this court had emphasized this aspect in the following terms: “46…. The legislature however is free to recognise the degree of harm or evil and to make provisions for the same. Making dissimilar provisions for one group of public sector undertakings does not per se make a law discriminatory as such. It is well-settled that courts will not sit as super- legislature and strike down a particular classification on the ground that any under- inclusion, namely, that some others have been left untouched so long as there is no violation of constitutional restraints…… The same principle was reiterated by this Court in the case of State of Gujarat v. Shri Ambica Mills Ltd. , Ahmedabad [ 1974 (3) SCR 760 ] . In that case, this Court was of the view that in the matter of economic legislation or reform, a provision would not be struck down on the vice of under-inclusion, inter alia, for the reason that the legislature could not be required to impose upon administrative agencies task which could not be carried out or which must be carried out on a large scale at a single stroke. It was further reiterated that piece meal approach to a general problem permitted by under-inclusive classifications, is sometimes justified when it is considered that legislatures deal with such problems usually on an experimental basis. It is impossible to tell how successful a particular approach might be, what dislocation might occur, and what situation might develop and what new evil might be generated in the attempt. Administrative expedients must be forged and tested. Legislators recognizing these factors might wish to proceed cautiously, and courts must allow them to do so….” This court is of the opinion that the same considerations apply in the present case. That, some employees could have benefited more under the ACP benefits, if the MACP scheme had not been introduced from an earlier date, is no ground to hold so and compel an executive agency to grant the claimed benefits.” (underline supplied) Learned Central Government Counsel would submit that later the Apex Court has considered the said question in Union of India and others, etc. v. S.Ranjit Samuel and others, etc., Civil Appeal Nos.1625- 1627 of 2021. The specific contention raised by the Government in S.Ranjit Samuel ’s case cited supra was that those employees who have become due for the benefit of ACP Scheme prior to 01.09.2008 would get the benefit of ACP Scheme whereas all such employees who are become due for the benefit from 01.09.2008 onwards would be considered only under the MACP Scheme. Admittedly all the petitioners in this case become eligible for the 2 nd upgradation as per the ACP Scheme only after 01.09.2008. The Apex Court in S.Ranjit Samuel ’s case cited supra held as follows: “12. The issue is no more res integra. Recently this Court, in the case of Vice Chairman Delhi Development Authority (supra), decided on 8 th March, 2022, has considered a similar challenge with regard to the employees of the Delhi Development Authority. In the said case also, the employees had contended that they had completed 24 years of service in January, 2009 and as such, they were entitled to get the second benefit/financial upgradation under the ACP Scheme. This court, relying on its earlier judgments in the cases of Union of India & Ors. vs. M.V.Mohanan Nair, (2020) 5 SCC 421 ) and Union of India vs. R.K.Sharma & Ors., (2021) 5 SCC 579 observed thus: “35. In the present context, none of the employees actually earned a second financial up-gradation. They undoubtedly became eligible for consideration. However, the eligibility ipso facto could not, having regard to the terms of the ACP scheme translate into an entitlement. The eligibility was, to put it differently, an expectation. To be entitled to the benefits, the public employer (here DDA) had to necessarily review and consider the employees' records, to examine whether they fulfilled the eligibility conditions and, based on such review individual orders had to be made by DDA. In other words, second ACP up-gradation was not automatic but dependant on external factors.Furthermore, as held by this Court in M.V. Mohanan Nair (supra), MACP benefits are only an incentive meant to relieve stagnation - framed under the executive policy. Its continued existence cannot be termed as an enforceable right. 36. Such expectation is akin to a candidate being declared successful in a recruitment process and whose name is published in the select list. Its continued existence cannot be termed as an enforceable right. 36. Such expectation is akin to a candidate being declared successful in a recruitment process and whose name is published in the select list. That, such candidate has no vested right to insist that the public employer must issue an employment letter, has been held by a Constitution Bench Judgment of this Court in Shankarsan Dash v. Union of India [ (1991) 3 SCC 47 ]. Therefore, it is held that employees' contention that they acquire a vested right in securing the second ACP benefit is insubstantial. 37. The employees in this case approached the High Court, complaining that their vested right, which was the assumed entitlement to be given by second ACP, was taken away by the MACP, introduced with effect from 01-09-2008, by an order dated 19-05-2009. No doubt, the MACP scheme is an executive order. Usually, such orders are expressed to be prospective. However, the executive has the option of giving effect to such an order, from an anterior date; especially if it confers some advantages or benefits to a sizeable section of its employees, as in this case. The nature of benefits-as emphasized by this court earlier, were by way of incentives. They are not embodied under rules. In such circumstances, a set of employees, who might have benefitted from the then prevailing regime or policy, cannot in the absence of strong and unequivocal indications in the later policy (which might be given effect to from an anterior date, like in this case), insist that they have a right to be given the benefits under the superseded policy. It is noteworthy that a larger section of employees would benefit from the MACP benefits, because they are to be given after 10-, 20- and 30-years' service (as compared with two benefits, falling due after 12 and 24 years of service) and further that such benefits under MACP scheme are subjected to less rigorous eligibility requirements, than under the ACP scheme.” [emphasis supplied] ........... ............ ........... 14. In the present case, this Court is considering the question, as to whether the employees, who had completed 24 years of regular service between 1 s t September, 2008 and 19 th May, 2009 would be considered under the ACP Scheme or under the MACP Scheme. ............ ........... 14. In the present case, this Court is considering the question, as to whether the employees, who had completed 24 years of regular service between 1 s t September, 2008 and 19 th May, 2009 would be considered under the ACP Scheme or under the MACP Scheme. This was also a question, which directly fell for consideration and decided by the three- judge Bench of this Court in the case of Vice Chairman Delh i Development Authority (supra). 15. In that view of the matter, the appeals deserve to be allowed. ..........” (underline supplied) In the light of the declaration of law as stated above, I am of the view that the petitioners are not entitled for the reliefs sought for in this writ petition. If the petitioners have not been granted the benefit of upgradation as provided under MACP Scheme the respondents shall take all steps to extend the said benefit to the petitioners within a period of three months from the date of receipt of a copy of the judgment. With the abovesaid observations the writ petition is dismissed.