Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 16251627 OF 2021
UNION OF INDIA & ORS. ETC. ...APPELLANT(S)
VERSUS
S. RANJIT SAMUEL & ORS. ETC. ...RESPONDENT(S)
JUDGMENT
B.R. GAVAI, J.
1. The short question that falls for consideration in the
present appeals is, as to whether the respondentsemployees
would be governed by the Assured Career Progression Scheme,
1999 (hereinafter referred to as “the ACP Scheme”) or by the
Modified Assured Career Progression Scheme, 2009 (hereinafter
referred to as “the MACP Scheme”).
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2. The facts, in brief, giving rise to the present appeals are as
under:
The respondentsemployees were working as Junior
3.
Engineers/Lower Division Clerks at the relevant point of time.
Taking into consideration the fact that the employees were
stagnated on a particular post for a prolonged period on
account of nonavailability of promotional post, the appellant
Union of India, in order to give relief to such employees,
brought into effect the ACP Scheme vide Office Memorandum
th
dated 9 August, 1999. Subsequent to the recommendation of
th
the 6 Central Pay Commission, the ACP Scheme came to be
superseded by the MACP Scheme vide the Office Memorandum
th
dated 19 May, 2009. However, the MACP Scheme was made
st
applicable retrospectively with effect from 1 September, 2008.
As per the ACP Scheme, an employee was entitled to the
4.
first benefit/financial upgradation after completion of 12 years
2
of regular service, if the regular promotion was not available to
him/her during that period. The employee was entitled to the
second benefit/financial upgradation after completion of 12
years of regular service from the date of the first
benefit/financial upgradation, i.e., after completion of a total of
24 years of regular service, subject to fulfillment of prescribed
conditions. The noticeable distinction between the ACP Scheme
and the MACP Scheme was that, instead of two
benefits/financial upgradations under the ACP Scheme, an
employee was entitled to three benefits/financial upgradations
on completion of 10, 20 and 30 years of regular service under
the MACP Scheme. The other distinction between the ACP
Scheme and the MACP Scheme was that the former (ACP
Scheme) assured the promotional grade, whereas the latter
(MACP Scheme) only assured higher grade pay.
5. It is not in dispute that all the respondentsemployees had
already availed of the first benefit/financial upgradation under
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the ACP Scheme. They had completed their 24 years of regular
service between January and April 2009. They expected that
their cases would be considered by the Screening Committee in
the month of January, 2009, in accordance with clause 6.3 of
the ACP Scheme. In the meantime, the MACP Scheme was
th
brought into effect vide Office Memorandum dated 19 May,
st
2009, making it retrospectively applicable with effect from 1
September, 2008. Contending that they were entitled to get the
second benefit/financial upgradation as per the ACP Scheme,
since the right accrued to them prior to the issuance of Office
th
Memorandum dated 19 May, 2009, the respondents made
representations to the concerned Authorities. The same were
rejected.
6. Being aggrieved thereby, the respondents preferred
Original Applications being O.A. Nos. 818 of 2011, 1170 of
2012 and 437 of 2013 before the Central Administrative
Tribunal, Madras Bench (hereinafter referred to as “the
4
th
Tribunal”). The Tribunal by its orders dated 6 November,
th
2013, passed in O.A. No. 818 of 2011 and 26 February, 2014,
passed in O.A. Nos. 1170 of 2012 and 437 of 2013, allowed the
Original Applications and directed their cases to be put up
before the Screening Committee for consideration for grant of
second benefit/financial upgradation under the ACP Scheme on
completion of 24 years of service.
7. Being aggrieved thereby, the appellants filed writ petitions
being Writ Petition Nos. 33946, 34602 and 27798 of 2014,
before the High Court of Judicature at Madras. The same were
th
dismissed by the impugned common order dated 14 February,
2017. Hence the present appeals.
8. We have heard Ms. Madhavi G. Divan, learned Additional
Solicitor General appearing on behalf of the appellants and Shri
Vinay Kumar Garg, learned Senior Counsel appearing on behalf
of the respondents.
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9. Ms. Madhavi G. Divan, learned Additional Solicitor
General, submitted that the Government of India vide its
th th
Resolution dated 29 August, 2008, accepted the 6 Central
Pay Commission Report. She submitted that as per the said
Resolution, though the revised pay structure of pay bands and
grade pay, as well as pension, was implemented with effect
st
from 1 January, 2006, the revised rates of allowance (except
st
dearness allowance/relief) was implemented with effect from 1
September, 2008. She submitted that since the Government of
India was contemplating to bring into effect the MACP Scheme,
the cases of such employees, which were due for consideration
st
after 1 September, 2008, were not put up before the Screening
th
Committee. She submitted that by Resolution dated 29
th
August, 2008, the recommendation of the 6 Central Pay
Commission with regard to revised rates of allowance was
st
implemented with effect from 1 September, 2008. The MACP
6
th
Scheme though was notified on 19 May, 2009, it was made
st
applicable retrospectively with effect from 1 September, 2008.
10. She submits that clauses 6 and 7 of the MACP Scheme
provide for taking care of such employees, who were entitled to
st
the benefits of the MACP Scheme between 1 September, 2008
th
and 30 June, 2009. She submits that clause 6 of the MACP
Scheme is similar to clause 6.3 of the ACP Scheme, which
requires the cases maturing during the first half (April
September) of a particular financial year to be taken up for
consideration by the Screening Committee meeting in the first
week of January of the same financial year. Similarly, the
cases maturing during the second half (OctoberMarch) of a
particular financial year are to be considered in the first week of
July of the same financial year. Clause 7 of the MACP Scheme
specifically provides that the first Screening Committee shall be
constituted within a month from the date of issue of this Office
th
Memorandum to consider the cases maturing upto 30 June,
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2009 for grant of benefits under the MACP Scheme. She,
therefore, submits that the respondentsemployees would be
entitled to be considered under the MACP Scheme. It is
submitted that all such employees, who had become due for the
st
benefit under the ACP Scheme prior to 1 September 2008,
would get the benefit of the ACP Scheme, whereas all such
st
employees, who had become due for the benefits from 1
September, 2008 onwards would be considered only under the
MACP Scheme. She relies on the recent judgment of this Court
by a three Judge Bench in the case of
Vice Chairman Delhi
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Development Authority vs. Narender Kumar and others .
11. Shri Vinay Kumar Garg, learned Senior Counsel appearing
on behalf of the respondentsemployees, on the contrary,
submitted that since the respondentsemployees had completed
their 24 years of service between January and April 2009, the
Screening Committee ought to have considered their cases in
1 2022 SCC OnLine SC 273
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January, 2009. It is submitted that, if their cases were
considered in January, 2009, they would very well be entitled to
get the second benefit/financial upgradation under the ACP
Scheme. He submitted that for the fault of the appellants in
not holding the Screening Committee meeting, the respondents
employees cannot be penalized. He relies on the order of this
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Court in the case of Union of India & ors. vs. Vinay Kumar .
The issue is no more . Recently this Court, in
12. res integra
the case of Vice Chairman Delhi Development Authority
th
(supra), decided on 8 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
th
2 Order dated 25 August, 2021 passed in Civil Appeal No.6359 of 2016
9
3
Union of India & Ors. vs. M.V. Mohanan Nair and Union of
4
observed thus:
India vs. R.K. Sharma & Ors.
“ 35.
In the present context, none of the
employees actually earned a second
financial upgradation. 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.
3 (2020) 5 SCC 421
4 (2021) 5 SCC 579
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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.
The employees in this case approached
37.
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 0109
2008, by an order dated 19052009. 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 benefitsas
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
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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 30years' 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]
13. This Bench is sitting in a combination of two Judges. As
such, this Bench is bound by the view taken by the threejudge
Bench of this Court in the case of Vice Chairman Delhi
Development Authority (supra). Insofar as the reliance placed
by Shri Vinay Kumar Garg, learned Senior Counsel, on the
order of this Court in the case of Vinay Kumar (supra) is
concerned, firstly, the said order was passed by a twojudge
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Bench, and secondly, the question that fell for consideration in
the said case was with regard to benefit under “Flexible
Complementing Scheme” notified by the Union of India with
st
effect from 1 January, 1999. As such, the question that fell
for consideration in the case of (supra) was
Vinay Kumar
totally different than the question that falls for consideration in
the present matter.
14. In the present case, this Court is considering the question,
as to whether the employees, who had completed 24 years of
st th
regular service between 1 September, 2008 and 19 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 threejudge Bench of this
Court in the case of
Vice Chairman Delhi Development
Authority (supra).
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15. In that view of the matter, the appeals deserve to be
allowed. It is, therefore, ordered that :
(i) The appeals are allowed.
(ii) The impugned order of the High Court of Judicature at
th
Madras dated 14 February, 2017, passed in Writ
Petition Nos. 33946, 34602 and 27798 of 2014 and the
th
orders of the Tribunal dated 6 November, 2013,
th
passed in O.A. No. 818 of 2011 and 26 February,
2014, passed in O.A. Nos. 1170 of 2012 and 437 of
2013 are quashed and set aside;
(iii) The Original Applications filed by the respondents
employees herein are dismissed.
(iv) It is held and declared that the cases of the
respondentsemployees/applicants before the Tribunal
would be governed by the MACP Scheme.
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(v) In case, the appellants have not finalized the cases of
any of the respondentsemployees for their entitlement
under the MACP Scheme, the same shall be considered
in accordance with the MACP Scheme and the benefits
be given to them within a period of three months from
the date of this order.
16. Pending applications, if any, shall stand disposed of. No
order as to costs.
…..….......................J.
[L. NAGESWARA RAO]
…….........................J.
[B.R. GAVAI]
NEW DELHI;
MARCH 24, 2022
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