THE VICE CHAIRMAN DELHI DEVELOPMENT AUTHORITY vs. NARENDER KUMAR

1 REPORTABLE IN THE SUPREME COURT OF INDIA (CIVIL APPELLATE JURISDICTION) CIVIL APPEAL NO(S). 1880 OF 2022 (Arising out of SLP (C) NO(S). 12817 OF 2020) THE VICE CHAIRMAN DELHI DEVELOPMENT AUTHORITY ....APPELLANT(S) VERSUS NARENDER KUMAR & ORS. ...RESPONDENT(S) WITH CIVIL APPEAL NO(S).1881 OF 2022 (Arising out of SLP (C) NO(S). 12666 OF 2020) CIVIL APPEAL NO(S).1882-1885 OF 2022 (Arising out of SLP (C) NO. 892-895 OF 2021) CIVIL APPEAL NO(S).1886 OF 2022 (Arising out of SLP (C) NO. 12815 OF 2020) CIVIL APPEAL NO(S). 1887 OF 2022 (Arising out of SLP (C) NO. 12963 OF 2020) Signature Not Verified Digitally signed by Indu Marwah Date: 2022.03.08 17:54:50 IST Reason: CIVIL APPEAL NO(S).1888 OF 2022 (Arising out of SLP (C) NO.4288 OF 2022) 2 (Arising out of SLP (C) DY. NO. 19635 OF 2020) ORDER

1 Delivered on 9 January, 2020 in WP 5927/2018, WP 5932/2018 and WP 476/2019. 2 Dated 11.02.2020, in WP. 528/2017 . 3 OM dated 09.08.1999, which came into force on 09.08.1999 3

4

5

6 memorandum was issued on 19.05.2009, they would be entitled to the benefits of the previous (i.e. ACP) scheme). 9. The CAT, after considering the submission of parties, noticed judgments of the Delhi, Madras and Bombay High Court and was of the opinion that employees were entitled to the claim. Therefore, it allowed the applications preferred by the employees and directed DDA to consider their cases for granting of the financial up-gradations under the ACP Scheme till 19.05.2009, i.e., the date of issuance of the MACP Scheme, if they were otherwise qualified and eligible, and to grant appropriate pay scales accordingly, with all consequential benefits. Arrears were however, denied to the employees. Proceedings before the Delhi High Court 10. The DDA’s argument before the Delhi High Court, which it approached, being aggrieved by CAT’s order, was that with effect from 1st September, 2008, the MACP Scheme had become operational and that the applicants- employees were no longer entitled to receive the benefits under the (erstwhile) ACP st scheme. It was contended that the ACP scheme was valid only until 31 August, 2008. By that date the employees had not completed 24 years of service. It was submitted that since the MACP scheme was introduced by the Office Memorandum (“OM”) dated 19th May, 2009, superseding the earlier ACP st scheme, the question of granting any benefit under the ACP scheme after 31 August, 2008 did not arise. 11. The High Court relied on the decision of this court, in Union of India v. 6 Balbir Singh Turn where it was held that Armed Forces Personnel, had to be given the benefit of the MACP from the date of the recommendations of the 6th 6 (2018) 11 SCC 99 7 st Central Pay Commission (‘CPC’) i.e. 1 January, 2006 and not from 1st September 2008, as decided by the Central Government. Based on this logic, the High Court, in the impugned order, directed that MACP benefits should be st extended to the employees of DDA from 1 January, 2006. Contentions of parties 12. It was argued by Mr. Kailash Vasudev, Senior Counsel for DDA that the MACP scheme came into effect on 01.09.2008 and this should be the criteria with respect to which applicability of whether the old ACP or the MACP should be decided. The employees completed 24 years in January 2009 i.e. after the date of coming into force of the MACP, and hence were not entitled to up-gradation under the old ACP. It was argued that the decision in Balbir Singh(supra), relied on by the Delhi High Court, applied only to Armed Forces personnel and not civil establishments like the DDA. 13. Counsel urged that it has been 12 years since the MACP scheme was implemented and a decision such as the impugned judgment would constitute judicial interference in policy matters and result in enormous financial implications. The decision of this court in Chandi Prasad Uniyal v State of 7 Uttarakhand was cited to urge that excess payments of public money cannot be permitted to be retained. It was contended that the High Court failed to recognise that the respondents became eligible for the second up-gradation only after the date of issuance of the MACP and consequently were not entitled to an up-gradation under the old ACP scheme. 14. It was emphasized, by citing this court’s judgment in State of U.P. & Ors. 8 Vs. U.P. Sales Tax Officer Grade-II Officer , that :- 7 2012 (8) SCC 417 8 2003 (6) SCC 250 8 “decision of expert bodies like the pay commission is not ordinarily subject to judicial review, obviously because pay fixation is an exercise requiring going into various aspects of the posts held in various services and nature of the duties of the employees.” This court’s judgment in Secretary Government (NCT of Delhi) and Ors. 9 Vs. Grade-I officers Associations & Ors , was also relied on. The court had, in that judgment, refused to interfere with the ACP Scheme as it would have violated the government’s policy and further held that exercise of judicial review would not be proper. The court upheld the ACP Scheme and the conditions therein. 10 15. Learned senior counsel also relied on State of Tamilnadu v Arumugham where it was observed that the state has the right to frame a policy to ensure efficiency and proper administration and to provide the suitable avenues for promotion to officers working in different departments. The court further observed that the Tribunal cannot substitute its own views for the views of the government or direct new policy based on the views of the tribunal. Likewise, the judgment in State of Haryana & Anr. v Haryana Civil Secretariat Personal 11 Staff Association was cited to urge that fixation of pay and determination of responsibilities is a complex matter in the realm of executive decision making and that the courts should approach such matters with restraint. The decision of 12 this court in Union of India v. M.V. Mohanan Nair was cited to urge that this court had, in its decision, outlined the nature of the MACP benefits, and also held that the scheme fell within the realm of executive decision making. 16. Mr. Saurabh Mishra, who also appeared on behalf of the DDA, relied on 13 the later judgment of this court in Union of India v. R.K. Sharma , which held 2014 (13) SCC 296 9 10 (1998) 2 SCC 198 11 2002(6) SCC 72 12 (2020) 5 SCC 421 13 (2021) 5 SCC 579 9

“9. Any interpretation/ clarification or doubt as to the scope and meaning of the provisions of the MACP scheme shall be given by the Department of Personnel and Training (Establishment-I)). The scheme would be operational w.e.f. 01.09.2008. In other words, financial up-gradations as per the earlier ACP Scheme (of August, 1999) would be granted till 31-08- 2008.”

10

11

12 allowances with effect from 01-01-2006. As regards revised allowances, (excluding dearness allowance), the effective date designated by the memorandum is 1-9-2008. 23. The noticeable feature of the MACP Scheme- is that three increments are to be granted to employees on completion of 10, 20 and 30 years of service. According to the MACP scheme, financial up-gradation is admissible on completion of 10 years of continuous service -in the same grade pay. The distinction between the ACP and the MACP scheme is not only with respect to the number of benefits (i.e., two under the ACP scheme, and three under the MACP scheme) but also that the former assured the promotional grade, where 15 the latter (MACP scheme) only assured higher pay. 24. The first issue which arises, is the correctness of the impugned judgment, in applying the reasoning in Balbir Singh. In that decision, the question which arose for consideration was the correct date from which the MACP up- gradation scheme, was applicable to employees (below the rank of officer). This court held that the scheme had to be applied from 01.01.2006, and not the date designated by the concerned order (01.09.2008). The Armed Forces Tribunal (AFT) held that ACP benefits granted to employees is part of the pay structure which not only affects pay but also pension. ACP then ruled that it is not an allowance but a part of pay relied on a Government Resolution to hold that the MACP scheme was payable w.e.f. 01.01.2006. This Court in Balbir Singh Turn (supra) upheld that finding recorded by the AFT. Instructions issued on 30-5-2011 were found to be contrary to the Resolution dated 30-8-2008 as, according to the resolution 1-1-2006 was the effective date for implementation

13

16 (2021) 5 SCC 579 14

15 absence of any facially compelling reason disclosing arbitrariness desist from stepping into the arena of decision making, and avoid directing their re- formulation or even requiring such schemes to be administered from any anterior period. 29. The other reason why the High Court went wrong, in holding what it did, is that DDA is an autonomous – a statutory – organization. No doubt, it largely follows the Central Government’s policies, in respect of pay and allowances, and other benefits for its employees. However, any revision of pay-structure or revision in other terms and conditions, of Central Government personnel cannot and do not automatically apply to the DDA; it has to consider the new or fresh scheme formulated by the Central Government, and adopt it, if necessary, after appropriate adaptation, to suit its needs. Therefore, the Central Government’s MACP scheme did not apply to it automatically. The DDA decided to apply it, 18 through an office order dated 06.10.2009. The High Court has overlooked this aspect, and apparently assumed that the MACP scheme applied automatically, upon its adoption by the Central Government, to the DDA. 30. This brings the court to the next point, which is whether the employees can assert what is termed as a vested right . The first submission in this regard is that according to Para 9 of the MACP scheme, those who are in employment on the date when MACP scheme was brought into force and who are entitled to the ACP benefits, especially the second financial up-gradation had a right to insist that their second up-gradation should be granted in terms of the ACP scheme. In this context, the argument advanced is that Rule 9 preserves and protects such a right (for entitlement) to be granted the ACP benefits even after the introduction of the MACP scheme.

16 31. Para 9 recognises the fact that if there is any ambiguity in the interpretation of the MACP scheme it would be resolved by the Department of Personnel and Training. It also clarifies in the last sentence that financial up- gradation would be granted till 31.08.2008 (given that the MACP scheme itself became operative on 01.09.2008), although the office memorandum was issued on 19.05.2009. In the opinion of this Court the undue influence placed upon the last sentence cannot be met much of by the employees given that the ACP scheme itself ended on 31.08.2008. This provision (i.e. Para 9) was made to cater to the situations where the grant of ACP benefits was under process, this would mean both types of benefits i.e. the first and the second up-gradation. Doubtlessly, the first up-gradation under the ACP scheme was to be granted after 12 years. If Para 9 were to be considered in the context of the first up- gradation it is a clarification to the effect that the individual concerned who has crossed 12 years’ service (and therefore became eligible and whose case is under active consideration) would get the ACP benefits. However, this provision cannot be understood as an independent transitional provision, enabling all employees awaiting the up-gradation to insist that the benefit of the ACP scheme should indefinitely continue despite its ceasing to exist after 31.08.2008. 32. The second aspect in this regard is the argument that a vested right accrued in favour of the employees who had completed the eligibility for a financial up-gradation to insist that such up-gradation ought to be only under the ACP scheme and not under the MACP scheme. 33. The concept of “vested right” has arisen for consideration before this court in several contexts especially with respect to alteration of service condition of public employees. That the Central Government in the exercise of its legislative powers conferred under provision of Article 309 of the Constitution can frame rules which has the force of law has been settled several decades ago. This court has also held that such rules can be made to operate 17

19 (1983) 2 SCR 287 20 1997Supp (3) SCR63 18

19

21 (1991) 3 SCC 47 20

21

.......................................................J [UDAY UMESH LALIT] .......................................................J [S. RAVINDRA BHAT] .......................................................J [BELA M. TRIVEDI] New Delhi, March 8, 2022.