Please refer to my earlier Blogs related to the effective date of MACPS and my pending Writ petition before the Hon'ble Bombay High Court. Finally, the Court delivered the judgement on 15-10-2018. The 4 respondents are:-
- D.O.P.T.
- Min. Fin., Dep. of Expt.
- Cent.Adm.Tribunal,
Mumbai Bench.
- D.G.A.(Central), Mumbai.
Though the Judgement is based on my Personal Writ Petition, hope DOPT will apply it to all covered under its jurisdiction.
3. The challenge in this petition
to the judgment and order dated 16th April, 2013 made by the Central
Administrative Tribunal (for short 'the CAT'), dismissing the Original Application
No. 145 of 2013 instituted by the petitioner seeking benefit of Modified
Assured Career Progression (MACP) with effect from 1st January, 2006 along with
all other consequential benefits.
4. Mr. M. P. Joseph-the
petitioner in person submits that the issue raised in the present petition is
answered in favour of the petitioner by the Hon'ble Apex Court in the case of
Union of India and others Vs. Balbir Singh Turn and another (2018) 11 SCC 99
and therefore the CAT's impugned judgment and order may be set aside and the
relief prayed for by him in his Original Application No. 145 of 2013 be
granted.
5. The learned Counsel for the
respondents submit that the benefit under the MACP cannot be regarded as any
part of the pay structure extended to the civilian employees and therefore the
CAT was justified in denying relief to the petitioner. The learned Counsel
submit that the recommendations of the pay commissions are not per-se binding
upon the Government and the implementation, including the date from which such
recommendations are to be implemented are matters in the discretion of the Government.
Since, in the present case, implementation in respect of allowances was
directed with effect from 1st September, 2008, the petitioner was
not at all justified in seeking implementation with effect from 1st January,
2006. For these reasons the learned Counsel for the respondents submit that
this petition may be dismissed.
6. The rival contentions now fall for our determination.
7. There is no dispute in the
present case that the petitioner is eligible for receipt of benefits under the
MACP. The only dispute is whether the petitioner is required to be granted the
benefits under the MACP with effect from 1st January, 2006 as
claimed by him in his Original Application No. 145 of 2013 or whether such
benefits are due and payable to the petitioner with effect from 1st September,
2008 as contended by and on behalf of the respondents.
8. The sixth pay commission made
recommendations with regard to Armed Forces Personnel. By a resolution dated 30th
August, 2008, the Central Government resolved to accept such recommendations
with regard to Personnel Below Officer Rank (PBOR) subject to certain
modifications. Clause (i) of this resolution as relevant and the same reads as follows:-
“(i)
Implementation of the revised pay structure of pay bands and grade pay, as well
as pension, with effect from 1-1-2006 and revised rates of allowances (except
dearness allowances/relief) with effect from 1-9-2008;”
9. As noted earlier, the only
issue which arises in the present petition is whether the benefit under MACP is
to be regarded as a part of the pay structure of pay bands and grade pay or
whether such benefit is to be regarded as “allowances (except dearness
allowance/relief)”. If the benefit under MACP is to be regarded as a part of
the pay structure of pay bands and grade pay, then obviously the petitioner is right
in contending that such benefit will have to be extended to him with effect
from 1st January, 2006 in terms of Clause (i) of the aforesaid resolution dated
30th August, 2008. However, if, as held by the CAT in the present case, the
benefit of MACP is to be regarded as “allowances (except dearness allowance/relief)”,
then the respondents would be right in their contention that such benefit is
payable only with effect from 1st September, 2008.
10. The aforesaid was the precise
issue which arose for consideration in case of Balbir Singh Turn (supra). The Apex
Court upon consideration of the Central Government Resolution dated 30th
August, 2008 along with Part-A of Annexure-I thereto has clearly held that the
benefit under MACP is a part of the pay structure and therefore such benefit was
payable from 1st January, 2006 and not from 1st September, 2008.
11. The reasoning is contained in
paragraphs 6, 7 and 8 ofMthe Apex Court ruling, which reads as follows :-
“6. The
answer to this question will lie in the interpretation given to the Government
Resolution, relevant portion of which has been quotedhereinabove. 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 1-1-2006. The second part of the clause lays
down that all allowances except the dearness allowance/relief will be effective
from 1-9-2008. 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.
7. 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:
10
|
Assured 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 upgradations 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 and 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.
8. 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 30-8-2008 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 3-8-2009. Relevant
portion of which reads as follows :
“... The
new ACP (3 ACP at 8, 16, 24 years of service) should be applicable w.e.f.
1-1-2006, and the old provisions (operative w.e.f. the Vth Pay Commission)
would be applicable till 31-12-2005. Regular service for the purpose of ACP shall
commence from the date of joining of a post in direct entry grade.”
Finally, on
30-5-2011 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. 1-9-2008. In other words, financial upgradations as
per the provisions of the earlier ACP scheme (of August 2003) would be granted till
31-8-2008.”
Therefore,
even as per the understanding of the Army and other authorities up till the issuance
of the letter dated 30-5-2011 the benefit of MACP was available from 1-1-2006.”
[emphasis supplied]
12. The CAT, when it delivered
the impugned judgment and order dated 16th April, 2013 did not have the benefit
of the ruling of the Apex Court in Balbir Singh Turn(supra) which
was decided only on 8th December, 2017. The view taken by the CAT in the
impugned judgment and order is now in direct conflict with the view taken by
the Apex Court in Balbir Singh Turn (supra). Obviously,
therefore, the impugned judgment and order will have to be set aside and the petitioner
will have to be held to be entitled to receive the benefits under MACP with
effect from 1st January, 2006 together with all consequential benefits.
13. The contentions raised by and
on behalf of the respondents cannot be accepted, particularly, in the light of the
ruling of the Apex Court in Balbir Singh Turn (supra). The Apex
Court, in clear terms and in the precise context of Central Government's
resolution dated 30th August, 2008 held that the benefit of MACP is a part of
the pay structure and not merely some allowance. The Apex Court has held that
the benefit of MACP affects not only the pay but also the pension of an
employee and therefore, the same, is not an allowance but part of the pay
itself. In terms of Clause (i) of the Central Government's resolution,
admittedly, the pay component became payable with effect from 1st January, 2006
unlike the allowance component which became payable from 1st September,
2008.
14. Besides, this is not a case
where the petitioner was insisting upon preponement of the date for
implementation of the recommendations of the pay commission. The Central Government,
vide resolution dated 30th August, 2008 had already accepted the
recommendations with regard to POBR, no doubt subject to certain modifications.
The relief claimed by the petitioner was entirely consistent with Clause (i) of
the resolution dated 30th August, 2008, which in fact required the Government
to extend benefits of revised pay structure of pay bands and grade pay, as well
as pension with effect from 1st January, 2006.
15. Accordingly, we dispose of
this petition with the following order:-
O R D E R
(a) The impugned judgment and
order dated 16th April, 2013 made by the CAT is hereby set aside.
(b) The petitioner is held entitled
to receive the benefit of MACP with effect from 1st January, 2006 together with
all consequential benefits.
(c) The respondents are directed
to work out the benefits of MACP with effect from 1st January, 2006 together
with consequential benefits and to pay the same to the petitioner as
expeditiously as possible and in any case within a period of three months from
today.
(d) If, such
benefits/consequential benefits are not paid to the petitioner within three
months from today, then the respondents will liable to pay interest thereon @
6% p.a. from the date such payments became due and payable, till the date of
actual payment.
(e) Rule is made absolute in the
aforesaid terms. There shall however be no order as to costs.
( M. S. SONAK,
J. )
( A. S. OKA, J. )
N.B:-
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