Dec 13, 2017

Important Supreme court Judgement - MACP should be given effect from 01.01.2006

Important Supreme court Judgement - MACP should be given effect from 01.01.2006



Union of India and Ors. - Appellant(s)
Balbir Singh Turn & Anr. - Respondent(s)

Deepak Gupta, J.

1. Applications for condonation of delay in filing and refiling the appeals are allowed.

2. This bunch of appeals is being disposed of by a common judgment since similar questions of law are involved.

3. The 6th Central Pay Commission was set up by the Government of India to make recommendations in matters relating to emoluments, allowances and conditions of service amongst other things. The Pay Commission also made recommendation with regard to armed forces personnel. On 30th August,2008, the Central Government resolved by a resolution of that date to accept the recommendation of the 6th Central Pay Commission (CPC for short) with regard to the personnel Below officer Rank (PBOR) subject to certain modifications clause (i) of the Resolution reads as follows:

"(i) Implementation of the revised pay structure of pay bands and grade pay, as well as pension, with effect from 01.01.2006 and revised rates of allowances (except Dearness Allowance/Relief) with effect from 01.09.2008".

clause 9 of the Resolution reads as follows:-

"(ix) Grant of 3 ACP up-gradation after 8,16 and 24 years of service of PBORs;"

4. Under the recommendations made by the 5th CPC there was a provision for Assured Career Progression (ACP). Vide this scheme, if an employee was not promoted he was entitled to get the next higher scale of pay after completion of 12/24 years of service. The 6th CPC recommended the grant of benefit of ACP after 10 and 20 years of service. The Union of India, however decided to grant 3 ACP upgradations, after 8, 16 and 24 years of service to PBORs, as per Clause (ix) extracted above. However, it would be pertinent to mention that the 6th CPC did away with the concept of pay scales and reduced the large number of pay scales into 4 pay bands and within the pay bands there was a separate grade pay attached to a post.

5. For the purpose of this judgment we are dealing with the facts of civil appeal diary No.3744 of 2016. It would be pertinent to mention that all the petitioners before the Armed Forces Tribunal (AFT for short) who are respondents before us are persons below officer rank. The respondents in this case retired after 01.01.2006 but prior to 31.08.2008. They claim that the benefit of the Modified Assured Career progression (MACP for short) was denied to them on the ground that the MACP was made applicable only with effect from 01.09.2008. The respondents approached the AFT praying that they are entitled to the benefit of MACP w.e.f 01.01.2006, i.e., the date from which the recommendation of the 6th CPC with regard to pay and benefits were made applicable. The stand of the Union of India was that the MACP was applicable only w.e.f. 01.09.2008 and, therefore, the respondents who had retired prior to the said date were not entitled to the benefit of the MACP. The AFT vide the impugned order dated 21.05.2014 held that the benefit of ACP granted to an employee is part of the pay structure which not only affects his pay but also his pension and, therefore, held that the ACP is not an allowance but a part of pay and, therefore, in terms of Clause (i) of the Government Resolution the MACP was payable w.e.f. 01.01.2006.

6. The question that arises for decision is whether the benefit of MACP is applicable from 01.01.2006 or from 01.09.2008.

7. The answer to this question will lie in the interpretation given to the Government Resolution, relevant portion of which has been quoted here in above. A bare perusal of Clause(i) of the Resolution clearly indicates that the Central Government decided to implement the revised pay structure of pay bands and grade pay, as well as pension with effect from 01.01.2006. The second part of the Clause lays down that all allowances except the Dearness Allowance/relief will be effective from 01.09.2008. The AFT held, and in our opinion rightly so, that the benefit of MACP is part of the pay structure and will affect the grade pay of the employees and, therefore, it cannot be said that it is a part of allowances. The benefit of MACP if given to the respondents would affect their pension also.

8. We may also point out that along with this Resolution there is Annexure- I. Part-A of Annexure-I deals with the pay structure, grade pay, pay bands etc., and Item 10 reads as follows :

10Assured Career Progression Scheme for PBORs. The Commission recommends that the time bound promotion scheme in case of PBORs shall allow two financial upgradations on completion of 10 and 20 years of service as at present. The financial upgradations under the scheme shall allow benefit of pay fixation equal to one increment along with the higher grade pay. As regards the other suggestions relating to residency period for promotion of PBORs Ministry of Defence may set up an Inter- Services Committee to consider the matter after the revised scheme of running bands is implemented (Para 2.3.34)Three ACP upgradation after 8, 16 and 24 years of service has been approved. The upgradation will take place only in the hierarchy of Grade Pays, which need not necessarily be the hierarchy in that particular cadre.

Part-B of Annexure-I deals with allowances, concessions & benefits and Conditions of Service of Defence Forces Personnel. It is apparent that the Government itself by placing MACP in Part-A of Annexure-I was considering it to be the part of the pay structure.

9.The MACP Scheme was initially notified vide Special Army Instructions dated 11.10.2008. The Scheme was called the Modified Assured Career Progression Scheme for Personnel Below Officer Rank in the Indian Army. After the Resolution was passed by the Central Government on 30.08.2008 Special Army Instructions were issued on 11.10.2008 dealing with revision of pay structure. As far as ACP is concerned Para 15 of the said letter reads as follows:

"15. Assured Career Progression. In pursuance with the Government Resolution of Assured Career Progression (ACP), a directly recruited PBOR as a Sepoy, Havildar or JCO will be entitled to minimum three financial upgradations after 8, 16 and 24 years of service. At the time of each financial upgradation under ACP, the PBOR would get an additional increment and next higher grade pay in hierarchy.

Thereafter, another letter was issued by the Adjutant General Branch on 03.08.2009. Relevant portion of which reads as follows:-

“…….The new ACP (3 ACP at 8, 16 and 24 years of service) should be applicable w.e.f. 1 Jan 2006, and the old provns (operative w.e.f. the Vth Pay Commission) would be applicable till 31 Dec. 05. Regular service for the purpose of ACP shall commence from the date of joining of a post in direct entry grade.

Finally, on 30.05.2011 another letter was issued by the Ministry of Defence, relevant portion of which reads as follows:-

“5. The Scheme would be operational w.e.f. 1st Sep. 2008. In other words, financial up-gradations as per the provisions of the, earlier ACP scheme (of August 2003) would be granted till 31.08.2008.”

Therefore, even as per the understanding of the Army and other authorities up till the issuance of the letter dated 30.05.2011 the benefit of MACP was available from 01.01.2006.

10. As already held by us above, there can be no dispute that grant of ACP is part of the pay structure. It affects the pay of the employee and he gets a higher grade pay even though it may be in the same pay band. It has been strenuously urged by Col. R. Balasubramanian, learned counsel for the UOI that the Government took the decision to make the Scheme applicable from 01.09.2008 because many employees would have lost out in case the MACP was made applicable from 01.01.2006 and they would have had to refund the excess amount, if any, paid to them. His argument is that under the old Scheme if somebody got the benefit of the ACP he was put in the higher scale of pay. After merger of pay scales into pay bands an employee is only entitled to higher grade pay which may be lower than the next pay band. Therefore, there may be many employees who may suffer.

11. We are only concerned with the interpretation of the Resolution of the Government which clearly states that the recommendations of 6th CPC as modified and accepted by the Central Government in so far as they relate to pay structure, pay scales, grade pay etc. will apply from 01.01.2006. There may be some gainers and some losers but the intention of the Government was clear that this Scheme which is part of the pay structure would apply from 01.01.2006. We may also point out that the Resolution dated 30.08.2008 whereby the recommendation of the Pay Commission has been accepted with modifications and recommendations with regard to pay structure, pay scales, grade pay etc. have been made applicable from 01.01.2006. This is a decision of the Cabinet.

This decision could not have been modified by issuing executive instruction. The letter dated 30.05.2011 flies in the face of the Cabinet decision reflected in the Resolution dated 30.08.2008. Thus, administrative instruction dated 30.05.2011 is totally ultra vires the Resolution of the Government.

12. Col. R. Balasubramanian, learned counsel for the UOI relied upon the following three judgments viz. P.K. Gopinathan Nair & Ors. v. Union of India and Ors. 1 , passed by the High Court of Kerala on 22.03.2017, Delhi Urban Shelter Improvement Board v. Shashi Malik & Ors.2, passed by the High Court of Delhi on 01.09.2016, K.K. Anandan & Ors. v. The Principal Accountant General Kerala (Audit) & Ors3 passed by the Central Administrative Tribunal, Ernakulam Bench, Kerala on 08.02.2013. In our view, none of these judgments is applicable because the issue whether the MACP is part of the pay structure or allowances were not considered in any of these cases.

13. In this view of the matter we find no merit in the appeals, which are accordingly disposed of. All pending applications are also disposed of.

(Madan B. Lokur)

(Deepak Gupta)

New Delhi
December 08, 2017

No comments:

Post a Comment


7th CPC (627) A Boon or Bane (1) Aadhaar Card (32) Accounts Department (3) ACR (2) Additional Allowances (1) Additional Secretaries (1) Advance (13) Advantage Employees (1) Advertisements (1) Age Relaxation (1) AIBEA (1) AIBOA (1) AICPIN (12) AIPAEA (1) Air Force (2) Air Ticket (2) AIRF (7) AITUC (1) Allowances (168) Annual Income (2) Anomalies (18) APARs (4) ARC (1) Armed Forces (10) Armed Forces Hospitals (1) Army Pay Commission (9) Arrears (25) Asset Declaration (11) ATM (2) Attendance (1) Axis Bank (1) Bank Employees Salary (16) Bank Employees Strike (13) Bank Pensioners (1) Banking (5) Banks (11) Bechmark (1) Bengaluru (1) Bharat Ratna (1) Bihar News (1) Birth / Death Certificate (1) Black Day (1) Black Money (2) Bonus (58) BPMS (11) BSNL (16) Budget (36) Bunching (10) Cabinet Approval (7) Cadre Review (18) Canteens (2) CAPF (1) Cash Transactions (3) Cashless State (2) Cashless Transaction (1) Caste (1) CASTE CERTIFICATE (1) Casual Labour (13) CAT (5) CBDT (2) CBI (2) CBSE (3) CCAS Cadre (1) CCS Rules (21) Central Armed Forces (1) Central Civil Pension (1) Central Excise Officers (2) Central Government Employees (119) Central Government Examination (3) Central Secretariat (2) Certificate (2) CGA Organization (1) CGEGIS (7) CGHS (28) CGHS Contribution (4) CGHS Hospitals (6) Charge Sheet (1) Chief Justice (1) Child Care Leave (7) Children Education Allowance (15) CITU (1) Civil Servant (2) Clarifications (27) Commemorative Coin (1) Commutation (1) Comparison (7) Compassionate Appointment (5) Compulsory Retirement (1) Computer Advance (3) Conduct Rules (1) Confederation (14) Consumer Price Index (3) Contract Labour (6) Corruption (3) Court Orders (1) CPGRAMS (1) CPI (1) CPMA (1) CPSE (3) Credit Card (2) CSD Chennai (1) CTET (1) CTU (1) Customs (1) CVC (1) DA Merger (3) DA News & Orders (102) DA Orders (12) Dearness Relief (12) Death Benefits (3) Death Claim (1) Debit Card (4) Defence (39) Delay Salary Hike (6) Demonetisation (28) Dental Clinic (1) DEPARTMENT OF EXPENDITURE (3) Department of Personnel & Training (6) Department of Posts (14) Department of Revenue (2) Department of Telecommunication (2) Deposit Scheme (1) Deputation (7) Dharna (2) Digital India (3) Digital Payment (19) Direct Benefit Transfer Scheme (2) Directorate of Estates (2) Disability Pension (6) Disabled person (6) Disadvantages (2) Discontinuation of Interview (1) DOP Orders (1) DoPT (69) Dress Allowances (1) e-PPO (1) e-Service Book (1) Earned Leave (1) ECHS (1) ECHS Smart Card (1) EFPO (1) Election 2016 (2) Election 2019 (1) Election Holiday (9) Employment News (15) Empowered Committee (27) Entry Level Pay (2) EPF (14) EPFO (15) Equal Work Equal Pay (2) ESIC (2) Ex-India Leave (1) Ex-Servicemen (15) Expectations (1) Expenses (1) Facebook (2) Fake News (3) Family Pension (13) Family Planning Allowance (1) FAQ (5) Federations (2) Finance Ministry (35) Financial Impact (7) Fire Engine driver (1) Fitment Factor (15) Fixed Medical Allowances (1) Foreign Tour (1) Forest Protection (1) Fraud Cases (1) Fund for Pay Commission (2) Fund Transfer (1) GAAR (1) Gas Subsidy (1) Gazette Notification (19) GDP (1) GDS (28) GeM Portal (1) General (97) Global Economy (1) Gold Deposit (2) Gold Rate (1) Governance (1) Government Doctors (12) Government Jobs (20) Government of India (1) Government Offices (2) Government Policies (1) Government Service (2) GPF (16) GPRA (1) Grade Pay (28) Gratuity (11) Greetings (1) Gross Pay (1) Group A Officers (2) Group B and C (3) Group D (1) GST (18) Guidelines (5) Gujarat Government (1) Hackers (1) HBA (1) HDFC (1) Health Camp (1) High Court (4) High Level Committee (4) High lights on 7th Pay commission (1) Higher Education (1) Higher Grade Pay (2) Holiday Homes (2) Holidays (13) Home Minister (1) Hospitality (1) House Building Advance (2) HRA (42) HRD Ministry (1) IAS (9) Immovable Property Return (1) Implementation (142) Incentive (6) income (1) Income Tax (90) Increment (31) India Post (3) Indian Banks Association (1) Indian Economy (4) Indian Institute of Legal Metrology (1) Indian Navy (3) Indian Rupees (12) Injustice (1) Insurance (3) Intellectual Property (1) Interest Rate (4) Interim Relief (5) Invest Money (6) IoFS (1) IPR (2) IPS (7) IRCTC (4) IRTSA (1) IT Department Officials (1) J&K (5) Jan Dhan Accounts (2) JCM (17) Jeevan Pramaan (2) Job Portal (2) Joint declaration form (1) Joint Secretary (1) Karnataka (1) Kendriya Vidyalaya (17) Kendriya Vihar (1) Kerala Pay Commission (6) Krishi Kalyan cess (1) KVS (5) KYC (1) Lay off (1) LDC Clerk (1) Leave (7) LED (1) Level of Rank (2) Level Rank (1) LIC (5) Life Certificate for Pensioners (2) Loan (4) Loco Inspectors (1) Lok Sabha (25) Lokpal and Lokayuktas (4) LPG (3) LPG Subsidy (3) LTC (33) MACP (46) Maharashtra Government (1) Make in India (1) Maternity Leave (19) Matrix Calculator (3) Matrix Table (9) Maximum wage (3) Medical Allowances (3) Medical Examination (1) Medical Reimbursement (3) Memorandum (1) Military Forces (5) Minimum Wage (47) Ministry of Health & Family Welfare (1) Ministry of Home Affairs (2) Ministry of Labour & Employment (1) Ministry of Personnel (1) Ministry of Urban Development (2) Ministry of Women and Child Development (1) MLCs (1) MP Salaries (10) MTNL (1) MTS (3) Mutual Transfer (1) National Anthem (1) National Pension Scheme (9) National Sports Awards (1) NEET (2) Net Pay (1) New Pension Scheme (11) NFIR Union (34) NFS (1) Night Duty Allowance (1) NJCA (42) NMC (4) NOC (2) Non Payment of Salary (1) Non Practicing Allowance (2) Not Effective (1) Notification (8) NPS (45) OBC (5) Officiating Allowances (3) Old Pension Scheme (1) Olympics (1) OROP (50) OTA (4) Overtime Allowance (4) PAN (8) Paramilitary (1) Parliament March (1) Passport (3) Pay and Allowances (1) Pay Band (6) Pay Commission (421) Pay Commission Deffered (1) Pay Commission News (386) Pay Commission Orders (1) Pay Commission Report (23) Pay Commission Report Submission (8) Pay Commission Revealed (1) Pay Fixation (22) Pay Matrix (24) Pay Revision (12) Pay Scale (4) Payment Bank (6) Payment of Salary (9) Pension (189) Pensioner Portal (3) Pensioners Federations (1) Performance Based (3) Periodical Review (1) Permanent Commission (1) Petrol (1) PF deduction (1) PF Withdrawal (1) PFMS (1) PFRDA (11) PG Portal (1) PIB (25) PLB Bonus (5) PMGKD Scheme (1) PMO (1) POBR (1) Political Parties (1) POSB Rate of Interest (2) Post Graduate (1) Post Offices (2) Postal JCA (3) Postmen Staffs (1) PPF (4) Pre-Retirement (4) President (1) President Salary (1) Private School (2) Promote Hindi (1) Promotion (12) Protest Programme (2) Provident Fund (2) Provisional Certificate (1) Public Grievances (1) PWD (1) Rail Fare (4) Railway (217) Railway Tatkal (2) Rajya Sabha (8) RBI (47) Re-Employment (2) Ready Reckoner (37) Recommendations (52) Recovery (1) Recruitment (29) Reservation (1) Reservation Chart (1) Resignation (1) Retirement (23) Retirement Age (18) Review Committee (3) Revised Pay Rules 2016 (12) Revision of Pension (8) RIO Olympic 2016 (7) Road Toll Tax (1) Rotational Transfer (2) RTI (13) Rupees (1) SAARC (1) Salaries of MLAs (2) Salary (1) Salary Advance (4) Salary Hike in Pay Commission (38) Savings (4) SBI (13) SC/ST Employees (5) Scholarship (1) SCOVA (9) Secretariat (3) Secretaries (1) Senior Citizen (2) Seniority (1) Service Charges (2) Service Tax (4) Seventh Pay Commission Calculator (26) Sexual Harassment (12) Small Savings (4) Smart Cities (1) Social Media (2) SPARROW (1) Spcial Casual Leave (1) Special Benefits (2) Special Casual Leave (1) Sports (10) SSC (9) Standard Operating Procedure (1) State Pay Commission (52) strike (117) Study Leave (1) Supreme Court (8) Survey (1) Suspension (1) Swachh Bharat Campaign (4) TA (1) TA allowances (2) Take Home (1) Tamil Nadu (4) Tax Payers (3) TDS (6) Teacher (2) Telangana Government (2) Tour Allowance (1) Tourism (1) Trade Union (9) Transport Allowance (2) Travelling Allowances (8) UIDAI (1) under Performers (1) Union News (42) UPSC (4) Uttar Pradesh (1) Vacant Posts (1) Vacation (1) Vacation Department (1) Vigilance (4) VRS (2) Wage Hike (6) Welfare (4) West Bengal (5) Whatsapp (1) Wholesale Price Index (1) Working Hours (1) Workshop (2) World Cup (1) WOS Currency Notes (10)