Union of India and Others vs Ex. Hc/Gd Virender Singh

HELD: 1.1 As rightly held in R.K. Sharma, the reasoning given in the case of Balbir Singh Turn, in opinion of this Court, has not been accepted by the three Judge Bench decision in the case of M.V. Mohanan Nair, which in clear terms holds grant of financial upgradation under the MACP Scheme is not a matter of pay structure, but an incentive scheme brought into force to relieve stagnation which operates on its own terms. This Court may add that the pay scales are fixed and revised by the rules which are enacted in exercise of powers conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution of India. Therefore, vide Notification dated 29th August 2008, the Central Civil Services (Revised Pay) Rules, 2008 were enacted vide G.S.R. No. 622(E). Rule 1(2) states that the Rules, as enacted, shall be deemed to have come into force on 1st January 2006. The aforesaid Rules neither postulate nor have any provision for grant of financial upgradation under the MACP Scheme. It is to be further noted, and it is an accepted position of both parties, that the MACP Scheme, as implemented, postulates grant of financial upgradation after 10, 20 and 30 years of regular service and not after 8, 16 or 24 years of regular service, as was originally envisaged in terms of Government Resolution dated 30th August 2008, or for that matter, 10 or 20 years of service, as was recommended by the Sixth Central Pay Commission. In our opinion, the Resolution of the Central Government dated 30th August 2008 cannot be read as conferring any right on the government employees. The resolution was not notified and enforced to confer a legal right. The Office Memorandum dated 19.05.2009 promulgates and operationalises the MACP Scheme with effect from 01.09.2008. The Office Memorandum states that financial upgradations as per the provisions of the earlier ACP Scheme would be granted till 30.08.2008. Further, past cases would not be re-opened and the difference in pay scales on account of grant of financial upgradation under the old ACP Scheme and the MACP Scheme shall not be construed as an anomaly. [Para 9][228-B-G; 229-A]

1.2 The counsel for the government employees, inspite of being correct that M.V. Mohanan Nair does not refer to Balbir Singh Turn and does not overrule it specifically, misses the point that the entire ratio and reasoning given in M.V. Mohanan Nair, as rightly observed in R.K. Sharma, cannot be reconciled with the ratio in Balbir Singh Turn. M.V. Mohanan Nair has examined the MACP Scheme in depth and detail to settle the controversy, inter alia holding that supersession of the ACP Scheme by the MACP Scheme is a matter of government policy, and that “after accepting the recommendation of the Sixth Central Pay Commission, the ACP Scheme was withdrawn and the same was superseded by the MACP Scheme with effect from 1.9.2008.” The ACP Scheme and MACP Schemes were held to be in the nature of incentive schemes to relieve stagnation and not as a part of pay structure, which had revised the pay and the dearness allowance with effect from 1.1.2006. In these circumstances, we do not think a case for reference to a larger Bench of three Judges to reconsider the ratio in the decision of R.K. Sharma is made out. Therefore, the contention of the counsel for the respondents/government employees for reference of the matter is rejected. [Para 10][229-A-E]

1.3. On the third aspect, we should record the concession rightly made by the Additional Solicitor General during the course of the hearing that the personnel working in the Central Armed Forces would be granted financial benefit under the MACP Scheme on completion of prescribed years of regular service by relaxation in cases where, on account of administrative or other reasons, they could not be sent for participation in pre-promotional course. The appellant- Union of India has agreed to accept the directions given by the Delhi High Court in the case of Ram Avtar Sharma v. Director General of Border Security Force in this regard. A liberal, pragmatic and ameliorative approach is required to succour genuine grievances of the personnel doing duty for the nation, owing to which they forgo participation in prepromotional courses. Accordingly, the third question is answered against the appellant-Union of India. [Para 11][229-E-H]

2. In view of the aforesaid discussion, the appeals filed by the Union of India are partly allowed and impugned judgments, to the extent they hold that the MACP Scheme applies with effect from 1.1.2006 and that under the MACP Scheme the employees are entitled to financial upgradation equivalent to the next promotional post, are set aside. MACP Scheme is applicable with effect from 1.9.2008 and as per the MACP Scheme, the entitlement is to financial upgradation equivalent to the immediate next grade pay in the hierarchy of the pay bands as stated in Section 1, Part A of the First Schedule to the Central Civil Services (Revised Pay) Rules, 2008. The third issue, which relates to the fulfilment of pre-promotional norms for grant of financial upgradation, is decided against the appellant-Union of India to the extent that this would not be insisted in the case of the Central Armed Forces personnel where, for administrative or other reasons, they could not be sent or undergo the prepromotional course. [Para 12][230-A-D] Union of India and Others v. M.V. Mohanan Nair (2020)

5 SCC 421 : [2020] 7 SCR 851; Union of India v. R. K. Sharma and Others (2021) 5 SCC 579 – relied on.

Union of India and Others v. Balbir Singh Turn and Another, (2018) 11 SCC 99 : [2017] 12 SCR 421; Bachhittar Singh v. State of Punjab & Another, AIR 1963 SC 395 : [1962] Suppl. SCR 713; State of Assam Etc. v. Kripanath Sarma and Others Etc., AIR 1967 SC

459 : [1967] SCR 499; Ram Avtar Sharma v. Director General of Border Security Force W.P. (c) No. 5278 of 2013 – referred to.