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Judgment
Sujit Narayan Prasad, J
Since the issues involved in both the appeals are identical, therefore, at the request of learned counsel for the parties, both the matters have been tagged together. Accordingly, they are heard together and are being disposed of by this common order.
Prayer in L.P.A. No. 253 of 2023:
The instant intra-court appeal, under Clause 10 of the Letters Patent, has been directed against order/judgment dated 03.01.2023 passed by learned Single Judge in W.P.(S) No. 5464 of 2015 by which the writ petition filed by the writ petitioners has been dismissed on the ground that fate of similar impugned orders/notifications have already been decided vide order dated 08.9.2022 by the Co-ordinate Bench of this Court in W.P. (S) No. 3306 of 2015 by dismissing the writ petition.
Prayer in L.P.A. No. 21 of 2023:
The instant intra-court appeal, under Clause 10 of the Letters Patent, has been directed against order/judgment dated 08.09.2022 passed by learned Single Judge in W.P. (S) No. 3306 of 2015 by which the writ petition filed by the writ petitioners has been dismissed finding no illegality in the order passed by the respondents- authorities.
Factual Aspect:
Brief facts of the case, as per the pleadings available on record, reads as under:
Before referring to the factual aspect of the matter, it requires to mention herein that initially writ petition being W.P. (S) No.3306 of 2015 was filed on 23.07.2015 seeking a direction upon the respondents to correctly fix the pay scale of the petitioners after giving due benefit of MACP with the date of entitlement of each petitioner and also to pay the arrears to each petitioner w.e.f. the date of their entitlement along with interest.
At the stage of the writ proceedings, the petitioners had relied upon the various decisions made by the erstwhile electricity board i.e. Bihar State Electricity Board succeeded by Jharkhand State Electricity Board including the office order No. 292 dated 24.02.2012 issued by Jharkhand State Electricity Board, which, as per the petitioners, was clarifying earlier decisions contained in resolution No. 2492 dated 12.05.2010 and also office order No. 546 dated 13.04.2011 and office order No. 1724 dated 03.11.2011.
During the pendency of this writ petition, the respondents passed an order dated 18.11.2016 whereby the office order No. 292 dated 24.02.2012 was withdrawn with retrospective effect and further a direction has been issued to grant 1st, 2nd and 3rd M.A.C.P in terms of resolution No. 2492 dated 12.05.2010 and office order No. 1724 dated 03.11.2011.
The impugned order dated 18.11.2016 was followed by two consequential orders vide Notification No. 338 dated 26.07.2017 for G.T.O. and Notification No. 1313 dated 18.07.2017.
Accordingly, the writ petitioners-appellants filed interlocutory application seeking amendment of the writ petition and challenged the annulment of the Office Order No. 292 dated 24.02.2012 with retrospective date vide the Office Order No. 2251 dated 18.11.2016 whereby benefits given to the petitioners vide Office Order No. 292 dated 24.02.2012 were withdrawn with retrospective date. The writ petitioners-appellants also challenged those two notifications being Notification No. 338 dated 26.07.2017 for G.T.O. and notification No. 1313 dated 18.07.2017 for General Cadres Graduate Engineers Electrical. The said interlocutory application was allowed. Thereafter, the petitioners filed the amended writ petition.
It is pertinent to mention herein that by virtue of the order dated 22.06.2022, the writ court directed the respondents to produce the records of the decision- making process with regard to impugned order dated 18.11.2016 and also with regard to the consequential orders and the matter was adjourned.
Subsequently, the original records were produced before the concerned court. In order to give opportunity of hearing to the petitioners, the respondents placed a copy of the original records by filing a supplementary counter affidavit to which a rejoinder was also filed.
Now coming to the factual aspect, the writ petitioners-appellants who were initially appointed by the Bihar state Electricity Board, Patna, are the retired Graduate Engineers of erstwhile Jharkhand State Electricity Board, which has since been divided into four nigams in the year 2013-2014 namely, (i).Jharkhand Urja Vikash Nigam Limited; (ii).Jharkhand Urja Sancharan Nigam Ltd.; (iii).Jharkhand Urja Vitaran Nigam Ltd.; and (iv).Jharkhand Urja Utpadan Nigam Limited.
It is stated that vide resolution no. 225 dated 09.12.1998, the then Bihar State Electricity Board [hereinafter referred to as „BSEB’] constituted a Pay Revision Committee for revision of scale of pay of the employees of Board. The said Committee was re- constituted vide Resolution No. 43 dated 28.01.2000 of the Board. The Pay Revision Committee submitted the report on 02.10.2000, which was considered by the BSEB in its meeting held on 11.10.2000.
Vide Resolution No. 7674 dated 11.10.2000 the Board in view of provisions of Section 79(C) of the Electricity (Supply) Act, 1948 decided to revise the existing pay-scales of the employees of the Board, wherein, as per the averments made in the writ petition, following decision was taken:
(i) The Revision of pay scale was in two categories; one relating to workmen and another relating to Officers of the Board;
(ii) It was further decided that the revision would be notionally with effect from 01.01.1996, but actual payment would be with effect from 01.04.1997.
(iii) It was further decided by Board that "Assured Career Progression Scheme" would replace the existing system of Selection Grade and Time Bound Scale Promotion. The Board decided that adoption of Assured Career Progression Scheme of the Govt. of India ensures a reasonable career progression.
The above decisions of the B.S.E.B were notified vide Notification No.- 268 dated 12.10.2000 (Annexure-2).
At the end of above notification, it was further stated as follows: -
"This notification shall be treated as a Regulation framed by the Board in exercise of power conferred under Section-79( c) of Electricity (Supply) Act 1948 (Act No.- LIV of 1948) and will form part of the relevant cadre regulations whenever applicable."
It requires to refer herein, the Government of India, extended the benefits of 6th Pay Revision to its employees with effect from 01.01.2006. The State of Jharkhand also decided to give benefits to its employees in terms thereof. Therefore, vide Resolution dated 28.02.2008 the State of Jharkhand decided to give benefits of 6th Pay Revision to its employees with effect from 01.01.2006. The resolution of the State Government in paragraph 14 states as follows :-
"14 Assured Career Progression Scheme:
The State Government have agreed to implement the modified Assured Career Progression Scheme on the pattern applicable to Central Government employees. In the modified ACP Scheme, there will be three financial up-gradation i.e. after 10, 20 and 30 years........”.
The Jharkhand State Electricity Board, JSEB, relying on the decision of the State Government, made the benefits of 6th Pay Revision applicable to its employee with effect from 01.01.2006. The JSEB also took decision to give benefit of Modified Assured Career Progression (M.A.C.P.) to its employees on completion of 10, 20 and 30 years of service. The above resolution of the Board was issued vide Resolution No.-2492 dated 12.05.2010 along with M.A.C.P. Scheme.
The engineers, working in JSEB were not satisfied with decision of Modified Assured Career Progression (M.A.C.P) upon completion of 10, 20 and 30 years like the State Government Employees and were demanding better prospect of M.A.C.P. Considering the claim and demand of the Engineers working under JSEB, the Board by its Resolution dated 13.04.2011 decided as follows:-
“Inpartial modification of Board’s Resolution no. 2492 dated 12.05.2010, Board vide its resolution no. 744 has decided as follows:-
For Electrical Engineers of the Board (General) Cadre and G.T.O. Cadre, benefit of M.A.C.P. will be after 8- 16-24 years of continuous service. However, for other employees of the Board the benefit of M.A.C.P. will be available respectively after 10-20-30 years of continuous service.
Other conditions of the aforesaid resolution will remain the same.”
The office order No. 546/EB dated 13.04.2011 was followed by another office order no. 1724 dated 03.11.2011 which reads as follows: -
“The Board vide Resolution No.818 has decided to implement MACP Scheme from 01.09.2008 with following provisions:
(i) Payment of Arrears will be made in two instalments first in the month of April 2012 and second in the month of September 2012 and
(ii) Payment of arrears of MACP will be subject to the condition that monthly revenue collection exceeds Rs.200 crores mark.
Board’s Resolution No.2492 dated 12.05.2010 and Board’s Office Order No.546 dated 13.04.2011 are modified to the above extent and other conditions of the aforesaid Resolution/Office Order will remain same.”
Thereafter, another Office Order No. 292 dated 24.02.2012 was issued amending the earlier decisions contained in Resolution No.-2492 dated 12.05.2010, Office Order No.-546 dated 13.04.2011 and Office Order No.- 1724 dated 03.11.2011.
It is stated that vide Order No. 292 dated 24.02.2012 mainly two changes have been made, firstly, clause no. 15 and 17 has been modified by replacing the term “A.C.P.” with the term “Promotion” and secondly, clause 16 (ga) has been modified by which the electrical engineers of the Board (General Cadre and GTO) have been carved out as a different class with regard to grant of benefits of MACP after 8-16-24 years of continuous service and for other employees, the benefits of M.A.C.P. have been made available after 10-20-30 years of continuous service.
In the backdrop of aforesaid fact, the writ petitions were filed by the writ petitioners. At the time of filing the writ petition, the petitioners had prayed for a mandamus upon the respondents to correctly fix their pay giving due benefits of M.A.C.P. with consequential reliefs which, inter alia, was based on office order No. 292 contained in memo No. 303 dated 24.02.2012. It is important to note that the office order No. 292 dated 24.02.2012 was shown to have been issued by the order of the Board of JSEB.
The grievance of the writ petitioners-appellants at the time of filing the writ petition was that the decisions of the JSEB including the aforesaid decision contained in Office Order No. 292 dated 24.02.2012 were not being implemented and consequently the writ petitions were filed seeking a mandamus upon the respondents.
However, during pendency of the writ petition, office order No. 292 dated 24.02.2012 was itself annulled with retrospective effect by virtue of impugned office order No. 2251 dated 18.11.2016 which was followed by subsequent orders dated 18.07.2017 and 26.07.2017.
The annulment of order No. 292 dated 24.02.2012 with retrospective date vide order No. 2251 dated 18.11.2016 and subsequent orders dated 18.07.2017 and 26.07.2017 have been challenged by way of filing writ petitions.
Before the writ Court, the respondent-JUVNL appeared and filed counter affidavit, stating inter alia, that the impugned order dated 18.11.2016 by which Office Order No. 292 dated 24.02.2012 has been withdrawn with retrospective date is a result of the report of the committee constituted vide order No. 1038 dated 16.06.2016 which consisted of as many as six members. As per the said report of the committee, it was found after verification of records that the office order No. 292 dated 24.02.2012 was issued communicating certain modifications of the Board’s Resolution No. 2492 dated 12.05.2010 in which ACP has been replaced by the terms promotion and consequently Clause-16(ga), 15 and 17 were modified. It was also observed in the report that though it was mentioned in the office order No. 292 dated 24.02.2012 that the same was being issued under the orders of Jharkhand State Electricity Board but the fact is that it had never been placed before the Board of JSEB (Jharkhand State Electricity Board). Meaning thereby, office order No. 292 dated 24.02.2012 was not approved by the Board of JSEB.
It has been averred that since the decision contained in office order No. 292 dated 24.02.2012 was never approved by the Board of JSEB, the same is not a decision of Board of JSEB and the same could not have modified any earlier decision of the Board of JSEB.
It is submitted that the said decision as contained in office order No. 292 dated 24.02.2012 is just an executive order which could not have modified by any decision of the Board of JSEB. Therefore, the impugned order dated 18.11.2016, which withdraws the office order No. 292 dated 24.02.2012, has rightly been passed.
Further ground has been taken that certain audit objection was raised with regard to the office order No. 292 dated 24.02.2012 and when the matter was examined, it revealed that the office order No. 292 dated 24.02.2012 was merely an executive order and the same was never placed and approved by the Board of JSEB and consequently the impugned order dated 18.11.2016 was passed, inter alia, nullifying and withdrawing the office order No. 292 dated 24.02.2012 with retrospective effect.
The learned writ court, considering the submissions advanced by the parties dismissed the writ petitions, recording the finding that since Order No. 292 dated 24.02.2012 was never approved by the Board of JSEB, as such vide impugned order dated 18.11.2016 the same was withdrawn, which requires no interference. 30. The order passed by the learned writ Court has been challenged by the writ petitioners in these intra- court appeals.
Submission on behalf of appellants-writ petitioners:
Mr. V.P. Singh, learned senior counsel for the petitioners-appellants has submitted that it is a matter related to the Graduate Engineers of 1981 and 1984 of the electricity Board.
Placing the written note of argument, learned senior counsel for the appellants has submitted that Jharkhand State Electricity Board vide its resolution No. 2492 dated 12/05/2010 decided to constitute a screening committee. Thereafter the Board also by the said Resolution authorized the Chairman/Secretary of the Board to approve and to act thereupon. Accordingly, as per Resolution of Board, the Chairman JSEB constituted a screening committee vide Office Order No. 1985 dated 19-10-2012 and thereafter on the basis of Screening Committee's report allowed the same vide notification no. 5529 dated 25-10-2012 (for G.T.O cadre) and notification no. 2153 dated 17-11-2012 (for general Cadre graduate engineer). But this aspect of the matter has not been considered by the learned Single Judge.
It has been submitted that the corrigendum of office order no. 292 dated 24-02-2012 is a statement of truth or interpretation that 2nd time scale pay of Executive Engineer selection grade is neither a scale of promotional post nor like ACP (implemented in state government). It has been stated that report was submitted by the screening committee and the corrigendum dated 24.02.2012 is just explanation of earlier orders or decision of the chairman, which was not required the approval of Board of JSEB/JUVNL.
It is submitted that the Successor company is a creator of Government and not by the legislature. Hence, it cannot override the decision of a statutory body i.e. JSEB. A non-Statutory Company cannot sit in appeal against decision of a statutory body.
Referring to Section 131 (2) and (4) of Electricity Act 2003 submission has been made that it makes it clear that: - Successor Companies only can step into the shoes of the Statutory body. They cannot reduce/withdraw (Including MACP, G.P Rs 9000) a vested rights of employees and remain enforceable even after restructuring of Board. JSEB had a statutory power conferred by the legislature its resolutions have quasi legal status.
It has been submitted that approval of corrigendum or grade pay by Statutory head is legally binding unless:
i) Later overruled by a higher Statutory Authority.
ii) Withdrawn by the JSEB itself before dissolutions. 37. But, in the case at hand, neither of this happened, so, the Successor Company cannot change legal status of the decision of JSEB Board.
It has further been submitted that in these cases there are two separate independent issues i.e., (i) The grade pay dispute; and (ii) Wrongful fixation. It is submitted that even if the appellants are not granted Grade pay of Rs 9000 then also the respondents cannot be allowed to continue with an incorrect fixation in violation FR 22 (1) (a) (1), Serial 7 resolution 2492 dated 12-05-2010 and the 6th Pay revision pay mapping rules.
It is further submitted that Petitioner original basic (Date of determination of Grade Pay of 3rd MACP after completion of 24 Yrs of Regular services) were at Rs 18150 on 01.08.2008 (1981 batch) and Rs 16575 (1984 batch) on 01.01.2008 respectively, but both were reduced and mapped to Rs 14,700 which is factually and legally incorrect.
Learned senior counsel has further submitted that natural justice and Equality (Article-14) has been violated by bringing arbitrarily to different senior batches (1981 and 1984) to the same starting point (Rs 14700) which result in - loss of seniority; loss of increments and violation of equal treatment.
But the learned Single Judge did not consider these aspects of the matter and the issue of proper fixation has not been correctly appreciated by the Single Judge, which requires interference by this Court.
It has been submitted that in Fixation of pay FR22 (1) (a) (1) has to be followed: -
i) Pay must be fixed considering old basic on 01.01.2008 for 1984 Batch and 01.08.2008 for 1981 Batch.
ii) 3% Addition on fixation benefit in old pay on 01.01.2008 / 01.08.2008 for respective batches.
iii) The deduced old basic to (ii) be matched in the cell of old pay matrix attached with Grade pay table.
iv)After staging in the cell of old pay matrix corresponding new pay against it would be the required new pay basic.
It has further been submitted that the Board/department ought not to use the G.P table to override the pay mapping rules; and parity of Tenure based (3rd MACP Period Parity) in place of point of time of basic pay should have been considered but these aspects of the matter has not been considered by learned Single Judge.
It has been submitted that when the hierarchy changes MACP consequences must logically change too. Otherwise, it will violate Article 14 of Constitution of India as also Article 16 i.e., Equality of opportunity in public Employment.
On the basis of above submission, it has been contended that the approved grade pay of Rs. 9000 as benefit of 3rd MACP after completion of 24 years of service to 1981 batch, 1984 batches and rest batches on completion of their 24 years service, as per conferred right by section 5 of resolution 2492 dated 12.05.2010 is still valid and legally alive even if corrigendum of 292 dated 24.02.2012 is annulled.
Learned senior counsel for the writ petitioners- appellants on the aforesaid ground has submitted that the order passed by the learned Single Judge requires interference.
Submission behalf of respondents-:
Per contra, learned counsel appearing for the respondents, on the strength of written note of argument filed on behalf of respondent-Board, has taken the following grounds in defending the order passed by the learned Single Judge.
It has been submitted that the MACP Scheme, as notified by the Government of India and adopted with modifications by the autonomous JSEB, provides for financial up-gradation to the immediate next higher grade pay in the hierarchy on completion of specified years of service (8, 16, and 24 years for engineers).
The approved hierarchy of Grade Pays for the appellants' cadre under the 6th Pay Revision is: Rs. 5600 Rs. 6600 Rs. 7750→ Rs. 8700→Rs. 9000. Accordingly, the appellants received time-bound promotions/time- scale benefits during their service, which placed them in scales corresponding to Grade Pays of Rs. 6600 and Rs. 7750.
For the purpose of MACP, the appellants' starting point remains their entry grade pay (Rs. 5600). Their legitimate MACP path is:
1st MACP (after 8 years): Grade Pay Rs. 6600
- 2nd MACP (after 16 years): Grade Pay Rs. 7750 (This is the immediate next higher grade pay after Rs. 6600)
- 3rd MACP (after 24 years): Grade Pay Rs. 8700 (This is the immediate next higher grade pay after Rs. 7750)
Submission has been made that the Grade Pay of Rs. 9000 is attached to the promotional post of Chief Engineer. It is not the immediate next grade pay in the MACP hierarchy for the appellants' cadre. Granting Rs. 9000 under the 3rd MACP would amount to an impermissible double promotion, skipping the intermediary Grade Pay of Rs. 8700 entirely.
Further submission has been made that the grant of Rs. 8700 as 2nd MACP and Rs. 9000 as 3rd MACP was based on a misinterpretation (Office Order No. 292 dated 24.02.2012), which was rightly pointed out by the statutory audit (Accountant General). Consequently, the Respondent-Board, in exercise of its administrative authority and to comply with its own rules, correctly withdrew the erroneous order retrospectively and reinstated the correct MACP hierarchy.
The Learned Single Judge meticulously analyzed these aspects, along with the Board's authority, the nature of the audit objection, and the true scope of the MACP Scheme, as such dismissed the petition, which requires no interference by this Court.
It has been submitted that the fundamental Principle of MACP is "Immediate Next Higher Grade Pay". Para 2 of the Government of India's MACP unequivocally states that "The MACPS envisages merely placement in the immediate next higher grade pay in the hierarchy..." This principle was faithfully incorporated into JSEB's MACP Scheme under Resolution No. 2492 dated 12.05.2010. The phrase "immediate next higher grade pay" is clear and unambiguous. It does not mean the "next promotional post's grade pay" but the next consecutive grade pay in the standardized pay structure. 55. It has further been submitted that the Office Order No. 292 dated 24.02.2012 is a Clarification, not a Benefit. This order was issued to clarify that "time bound scale was neither equivalent to ACP nor promotional scale, hence, it would not be counted as MACP like ACP or
promotion." It did not create a new entitlement but explained an existing rule.
The time-bound scale of Rs. 12300-375-15675- 450-18825 (corresponding to Grade Pay Rs. 7750) was an automatic benefit based on tenure, without a formal promotion or change in designation.
It has been submitted that the MACP Scheme, based on the Central scheme, is designed for employees stagnating without promotion. Since the appellants received this time-scale benefit, they were not "stagnating" in the Grade Pay of Rs. 6600 for the purpose of the MACP's design. However, the Scheme's rules explicitly state that such non-promotional financial benefits do not alter the MACP hierarchy.
Further, when the statutory audit (Accountant General) pointed out that treating the time scale as a non-event for MACP and thereby skipping Grade Pay Rs. 7750 was a substantive error, the Board re-evaluated it. 59. It has been submitted that the withdrawal of Office Order No. 292 dated 24.02.2012, vide Memo No. 2251 dated 18.11.2016 was not mala fide but a necessary correction of a jurisdictional error to align pay fixation with the sanctioned Scheme.
The Learned Single Judge, taking into the aforesaid fact has correctly held that the audit objection was substantively correct and that the Board's subsequent correction based on it was lawful.
It has been submitted that the learned Single Judge finding that Office Order No. 292 dated 24.02.2012 was not properly approved by the Board is a finding of fact based on record, has passed the impugned order. It has been submitted that even if signed by the Secretary, if it substantially altered the Board's sanctioned Resolution No. 2492 dated 12.05.2010 without Board approval, it was without jurisdiction. Its subsequent withdrawal was thus valid.
It has further been submitted that the MACP Scheme is distinct from the old ACP Scheme. The ACP Scheme considered the hierarchy of promotional posts, while MACP scheme considers the hierarchy of grade pays. This crucial difference has been recognized by Courts of law.
Learned counsel for the respondents on the aforesaid ground has submitted that the order passed by the learned Single Judge requires no interference by this Court.
Analysis
This Court has heard the learned counsel for the parties and gone through the rival submissions advanced on behalf of parties as also the pleading available in the memo of appeal.
The writ petitioners-appellants were initially appointed by the Bihar State Electricity Board, Patna, and are the retired Graduate Engineers of erstwhile Jharkhand State Electricity Board, which has since been divided into four nigams, namely, (i). Jharkhand Urja Vikash Nigam Limited; (ii). Jharkhand Urja Sancharan Nigam Ltd.; (iii). Jharkhand Urja Vitaran Nigam Ltd.; (iv). Jharkhand Urja Utpadan Nigam Limited. The appellants were appointed as Assistant Electrical Engineers/Assistant Executive Engineers in the General Cadre and GTO Case in the year 1984.
The Government of India, provided benefits of 6th Pay Revision to its employees with effect from 01.01.2006. The State of Jharkhand also decided to give benefits to its employees in above line. Therefore, by Resolution dated 28.02.2008 the State of Jharkhand decided to give benefits of 6th Pay Revision to its employees with effect from 01.01.2006. By above resolution of the State Government in paragraph 14 it is stated that “..In the modified ACP Scheme, there will be three financial up-gradation i.e. after 10, 20 and 30 years........”.
The JSEB, upon relying on the decision of the State Government, made the benefits of 6th Pay Revision applicable to its employee and also took decision to give benefit of Modified Assured Career Progression (M.A.C.P.) to its employees on completion of 10, 20 and 30 years of service.
The engineers, working in JSEB, being not satisfied with decision of Modified Assured Career Progression (M.A.C.P) upon completion of 10, 20 and 30 years like the State Government Employees, demanding better prospect of M.A.C.P. considering claim and demand of the Engineers working under JSEB, the Board by its Resolution dated 13.04.2011 decided that “In partial modification of Board’s Resolution no. 2492 dated 12.05.2010, Board vide its resolution no. 744 has decided as follows:- For Electrical Engineers of the Board (General) Cadre and G.T.O. Cadre, benefit of M.A.C.P. will be after 8-16-24 years of continuous service. However, for other employees of the Board the benefit of M.A.C.P. will be available respectively after 10-20-30 years of continuous service.....”
The office order No. 546/EB dated 13.04.2011 was followed by another office order no. 1724 dated 03.11.2011 whereby the MACP Scheme was modified to the extent that it to be implemented from 01.09.2008, as quoted and referred above.
Thereafter, another Office Order No. 292 dated 24.02.2012 was issued amending the earlier decisions contained in Resolution No.-2492 dated 12.05.2010 whereby mainly two changes have been made, firstly, clause no. 15 and 17 has been modified by replacing the term “A.C.P.” with the term “Promotion” and secondly, clause 16 (ga) has been modified by which the electrical engineers of the Board (General Cadre and GTO) have been carved out as a different class with regard to grant of benefits of MACP after 8-16-24 years of continuous service and for other employees, the benefits of M.A.C.P. have been made available after 10-20-30 years of continuous service.
It appears that thereafter certain audit objection was raised with regard to the office order No. 292 dated 24.02.2012 and when the matter was examined, it revealed that the office order No. 292 dated 24.02.2012 was merely an executive order and the same was never approved properly.
Accordingly, the respondents passed order dated 18.11.2016 whereby the aforesaid office order No. 292 as contained in memo No. 24.02.2012 has been withdrawn with retrospective effect and further a direction has been issued to grant M.A.C.P in terms of resolution No. 2492 dated 12.05.2010 and office order No. 1724 dated 03.11.2011.
This Court, before going to the legality and propriety of the impugned order needs to refer herein the object and purport of „Modified Assured Career Progression’ [MACP]. The Scheme of MACP was floated by the Central Government employees designed to provide financial relief against stagnation in their careers due to lack of promotional avenues. Its primary object is to„relieve stagnation’. It offers for financial advancement for employees who remain in the same post and grade for long periods without receiving a regular promotion. It specifically provides that the financial up-gradation is granted to the immediate next higher level in Pay Matrix. 74. It is evident from the pleadings available on record that the MACP Scheme, as notified by the Government of India, with some modifications, was adopted by the Jharkhand State Electricity Board [JSEB], and provided financial up-gradation on completion of specified years of service (8, 16, and 24 years for engineers).
Accordingly, the appellants had received time- bound promotions/time-scale benefits during their service. Taking the entry grade pay of Rs. 5600, the appellants are said to have entitled for 3rd MACP, after 24 years, in the Grade Pay Rs. 8700 and not Rs. 9000/- as claimed by the appellants, which is the immediate next higher grade pay after Rs. 7750/-.
The stand has been taken by the respondents- Board that the Grade Pay of Rs. 9000 is attached to the promotional post of Chief Engineer, and since it is not the immediate next grade pay in the MACP hierarchy for the appellants' cadre, therefore, granting Rs. 9000 under the 3rd MACP would amount to an impermissible double promotion, skipping the intermediary Grade Pay of Rs. 8700 entirely.
Herein, the core issue involved is about the fixation of their pay under the Modified Assured Career Progression (MACP) Scheme as the appellants claim that they are entitlement to the Grade Pay of Rs. 9000/- in Pay Band IV (Rs. 37,400-67,000) upon completion of 24 years of service (3rd MACP), whereas, the respondent by virtue of impugned notification dated 18.11.2016 claims that Grade Pay of Rs. 8700/- is made applicable for the appellant for 3rd MACP.
Therefore, the question arises that whether the Modified Assured Career Progression (MACP) Scheme has to be extended to the next promotional post or such employees would be entitled to immediate next higher grade pay in the hierarchy of the recommended revised pay bands.
It needs to refer herein that the Hon’ble Supreme Court has time and again observed that Modified Assured Career Progression (MACP) Scheme has nothing to do with the next promotional post and what the employee would be entitled is the immediate next higher grade pay in the hierarchy of the recommended revised pay bands. Reference in this regard be made to the judgment rendered by Hon’ble Apex Court in the case of Union of India and others Vs. M.V. Mohanan Nair (2020) 5 S CC 421, the relevant paragraphs of the aforesaid judgment is being quoted as under:
“29. As pointed out earlier, both ACP and MACP Schemes are in the nature of incentive schemes devised with the object of ensuring that the employees who are unable to avail of adequate promotional opportunities, get some relief from stagnation in the form of financial benefits. Under the MACP Scheme, financial upgradations are granted at three regular intervals on completion of 10-20-30 years of service without promotion. Hence, it is also intended to ensure that the employees are adequately incentivised to work efficiently despite not getting promotion for want of promotional avenue. The change in policy brought about by supersession of the ACP Scheme with the MACP Scheme is after well-deliberated and well- documented recommendations of the Sixth Central Pay Commission. Considering the various issues in the implementation of the ACP Scheme, the Pay Commission expressed its views “the only other way is to bring systematic changes in the existing Scheme of ACP so that all the employees irrespective of the existing hierarchy structure in their organisations/cadres, get some benefit under it”. The Commission therefore, recommended that the existing scheme of ACP be continued with the modifications indicated thereon in the report that the financial upgradation has to be in the next immediate grade pay. One of the reasons for the expert body recommending the MACP Scheme was that there were inter-departmental disparities where several departments had varying promotional hierarchies. As a result, the working of ACP Scheme under which an employee who stagnated for 12 years, was entitled to pay in the pay scale of the next promotional post, led to inter-departmental anomalies. The Pay Commission therefore, recommended MACP Scheme with a view to putting an end to the problem ensuing from inter- departmental disparities.
The learned Amicus Curiae and the learned counsel appearing for the respondents urged the Court to adopt a “purposive interpretation” that the words “immediate next higher grade pay” to be interpreted as “Grade pay of the next promotional post” in the hierarchy. MACP Scheme envisages merely placement in the immediate next higher grade pay. By perusal of the MACP Scheme extracted earlier, it is seen that the words used in the Scheme are “placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands”. The term “grade pay in the next promotional post” is conspicuously absent in the entire body of the MACP Scheme. The argument of the respondents that the benefit of MACP Scheme is referable to the promotional post, is dehors the MACP Scheme and cannot be accepted. Though ACP and MACP Schemes are intended to provide relief against stagnation, both the schemes have different features. Pay scales under the Sixth Pay Commission and the MACP Scheme are stated to be more beneficial since it extends to the employees with time intervals with higher pay bands and various facilities which were not available under the ACP Scheme including the three financial upgradations in shorter time span. In any event, MACP Scheme has not been challenged by the respondents. As rightly contended by the learned ASG, the respondents cannot be permitted to cherry- pick beneficial features from the erstwhile ACP Scheme and also take advantage of the beneficial features in the MACP Scheme.
The Hon’ble Apex Court has reiterated its view in the case of Director, Directorate of Enforcement and Anr. v. K. Sudheesh Kumar & Ors, (2022) 3 SCC 649 and has observed, which reads as under:
At the outset it is required to be noted that the issue involved in the present appeal is as such squarely covered by the decision of this Court in M.V. Mohanan Nair [Union of India v. M.V. Mohanan Nair, (2020) 5 SCC 421 : (2020) 2 SCC (L&S) 1] . By detailed judgment and order this Court has interpreted the very MACP Scheme and it is observed and held that under the MACP Scheme employees are entitled to the immediate next higher grade pay as given in Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008.
It is specifically observed and held by this Court in the aforesaid decision in M.V. Mohanan Nair [Union of India v. M.V. Mohanan Nair, (2020) 5 SCC 421 : (2020) 2 SCC (L&S) 1] that MACP has nothing to do with the next promotional post and what the employee would be entitled to would be the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in the CCS (Revised Pay) Rules, 2008. As per Clause 8.1 of the MACP Scheme “consequently upon the implementation of Sixth CPC's recommendations, grade pay of PB-2 and PB-3 would be Rs 5400. It specifically provides that the grade pay of Rs 5400 in PB-2 and Rs 5400 in PB-3 shall be treated as separate grade pays for the purpose of grant of upgradations under the MACP Scheme”. Therefore, Respondents 1 & 2 as PB-2 shall be entitled to the next grade pay of Rs 5400 as per Clause 8.1 and as per Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008. The High Court has allowed the grade pay of Rs 6600 by considering the next promotion post of Assistant Director i.e. Deputy Director which carries a grade pay of Rs 6600. However, the aforesaid interpretation would be contrary to the MACP Scheme.
Therefore, impugned notification 18.11.2016 whereby the aforesaid office order No. 292 as contained in memo No. 24.02.2012 has been withdrawn with retrospective effect and further a direction has been issued to grant 1st 2nd and 3rd M.A.C.P in terms of resolution No. 2492 dated 12.05.2010 and office order No. 1724 dated 03.11.2011, cannot be said to suffer from error.
It further appears that the respondents filed supplementary affidavit pursuant to orders passed by the writ court, wherefrom it is apparent that since the year 2014 itself, the team of Accountant General (Audit) has been raising two objections.
The first objection was with regard to grant of benefits of MACP to the electrical engineers of the Board (General Cadre and GTO) after 8-16-24 years of continuous service and for other employees the benefits have been made available after 10-20-30 years of continuous service.
The second objection was that the up-gradation of pay under MACP should be to the next higher grade pay. It was noticed that up-gradation of pay to the next promotional grade was done in the next grade.
The objection of the audit was that these two modifications were against the very scheme of MACP of the central government.
For the objection of the audit team a committee was constituted by the respondents vide office order dated 16.06.2016 and an enquiry report dated 29.08.2016 was prepared with two recommendations expressed in terms of the view of the committee, which is quoted as under: -
With regard to issue no. 1.
“Though the committee is of the view that issues should be taken up/resolved considering the rules and spirit of MACP scheme duly notified by GoI/GoJ, but, since the time bound for Electrical Engineer/General Cadre and GTO) from 10-20-30 to 08-16-24 had been modified by the Board (JSEB) vide its resolution no. 744, though the same has been highly objected by the AG audit. Therefore, it will be proper to place the whole matter before BoD of JUVNL to take appropriate decision.”
With regard to issue no.-2
The discussion with regard to issue no.2, interalia, were as follows:-
“……Later on an office order no. 292 dt. 24.02.2012 has been issued communicating certain modifications of the Boards resolution no. 2492 dt.12.05.2010 in which“A.C.P.” has been replaced with the terms “Promotion”. Accordingly, clause no. 16(x) 15 and 17 has been modified. Though it is mentioned in the aforesaid office order that .................., but fact is that, it had never been placed before the Board, meaning there by it is not approved by the Board of erstwhile JSEB……”
(emphasis supplied)
View of the committee with regards to issue no.2
“The committee is of the view that issues should be taken up/resolved considering the rules and spirit of MACP scheme duly notified by GoI/GoJ, and since the office order no. 292 dt. 24.02.12 was not approved by Board (erstwhile JSEB), therefore it is recommended to withdraw the office order no. 292 dt. 24.02.16 and necessary steps may be taken accordingly.”
(emphasis supplied)
Thereafter, the matter was placed before the Board of Directors of the Respondents wherein, a decision was taken to withdraw Memo No. 292 dated 24.02.2012 with retrospective effect vide record of proceedings dated 16.11.2016 which was followed by issuance of impugned order dated 18.11.2016 whereby vide para no.1 the Memo No. 292 dated 24.02.2012 was withdrawn with retrospective effect.
On account of retrospective withdrawal of Memo No. 292 dated 24.02.2012 vide impugned order dated 18.11.2016, the un-amended clause 15, 16(ga) and 17 of Board’s resolution no. 2492 date 12.05.2010 were restored.
Admittedly, order No. 292 dated 24.02.2012 was merely an executive order and the same was never placed and approved by the Board of JSEB.
It is settled principle of law that executive order or resolution cannot override statutory law, which is a fundamental principle in administrative law, meaning thereby the executive actions must align with, supplement, or fill gaps in laws but never contradict or subvert them; courts consistently quash executive instructions that run counter to existing statutory rules or regulations, reinforcing that executive orders lack the force of law to override enacted legislation.
Reference in this regard be made to the judgment passed by Hon’ble Apex Court in the case of R. Ranjith Singh and Others Vs. State of Tamil Nadu and Others 2025 SCC OnLine SC 1009, wherein it has been held as under:
This Court in the case of State of Madhya Pradesh v. G.S. Dall and Flour Mills, 1992 Supp (1) SCC 150 has held that executive instructions can supplement a Statute or cover areas which the Statute does not extend. They cannot run contrary to the statutory provisions or whittle down their effect. In the present case, the G.O. dated 13.07.1995, G.O. dated 24.10.1996 and G.O. dated 10.06.2009 are executive instructions and based upon the executive instructions, the statutory provisions as contained under the statutory rules could not have been made applicable as has been done in the present case.
This Court in the case of Jaiveer Singh v. The State of Uttarakhand, 2023 INSC 1024 has held as under:
“34. It can thus be seen that it is a trite law that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, it can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. It is a settled proposition of law that an authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory rules.
However, instructions can be issued only to supplement the statutory rules but not to supplant it.
This Court has again held in the aforesaid case that the Government cannot issue executive instructions in contravention of the statutory rules.
Thus, Rule is settled that administrative instruction cannot take the shape of statutory effect on the operation of Law and the instruction do not have any
overriding effect on the operation of the Act.
Reference in this regard may be made to the judgment rendered by Hon’ble Apex Court in the case Ratan Kumar Tandon and Ors. Vrs. State of U.P., reported in (1997) 2 SCC 161. However, the said judgment has been given in the context of the ceiling Act, but the principle decided therein that executive instructions cannot have any overriding effect upon the statute.
Further, by referring to Section 131 (2) and (4) of Electricity Act 2003 the learned Senior Counsel has contended that it makes it clear that Successor Companies only can step into the shoes of the Statutory body and they cannot reduce/withdraw (Including MACP, G.P Rs 9000) a vested rights of employees and remain enforceable even after restructuring of Board.
In order to appreciate the aforesaid contention this Court has gone through Section 131 of the Electricity Act 2003 particularly sub-Section (2) and (4) thereof, wherein it has been stipulated that any property, interest in property, rights and liabilities vested in the State Government under sub-section (1) shall be re- vested by the State Government in a Government company or in a company or companies, in accordance with the transfer scheme so published along with such other property, interest in property, rights and liabilities of the State Government as may be stipulated in such scheme, on such terms and conditions as may be agreed between the State Government and such company or companies being State Transmission Utility or generating company or transmission licensee or distribution licensee, as the case may be.
For ready reference the said Section of the Act 2003 is being quoted as under:
Vesting of property of Board in State Government.—(1) With effect from the date on which a transfer scheme, prepared by the State Government to give effect to the objects and purposes of this Act, is published or such further date as may be stipulated by the State Government (hereafter in this Part referred to as the effective date), any property, interest in property, rights and liabilities which immediately before the effective date belonged to the State Electricity Board (hereinafter referred to as the Board) shall vest in the State Government on such terms as may be agreed between the State Government and the Board.
(2) Any property, interest in property, rights and liabilities vested in the State Government under sub-section (1) shall be re-vested by the State Government in a Government company or in a company or companies, in accordance with the transfer scheme so published along with such other property, interest in property, rights and liabilities of the State Government as may be stipulated in such scheme, on such terms and conditions as may be agreed between the State Government and such company or companies being State Transmission Utility or generating company or transmission licensee or distribution licensee, as the case may be:
Provided that the transfer value of any assets transferred hereunder shall be determined, as far as may be, based on the revenue potential of such assets at such terms and conditions as may be agreed between the State Government and the State Transmission Utility or generating company or transmission licensee or distribution licensee, as the case may be.
(3) Notwithstanding anything contained in this section, where,—
(a) the transfer scheme involves the transfer of any property or rights to any person or undertaking not wholly owned by the State Government, the scheme shall give effect to the transfer only for fair value to be paid by the transferee to the State Government;
(b) a transaction of any description is effected in pursuance of a transfer scheme, it shall be binding on all persons including third parties and even if such persons or third parties have not consented to it.
(4) The State Government may, after consulting the Government company or company or companies being State Transmission Utility or generating company or transmission licensee or distribution licensee, referred to in sub- section (2) (hereinafter referred to as the transferor), require such transferor to draw up a transfer scheme to vest in a transferee being any other generating company or transmission licensee or distribution licensee, the property, interest in property, rights and liabilities which have been vested in the transferor under this section, and publish such scheme as statutory transfer scheme under this Act.
(5) A transfer scheme under this section may—
(a) provide for the formation of subsidiaries, joint venture companies or other schemes of division, amalgamation, merger, reconstruction or arrangements which shall promote the profitability and viability of the resulting entity, ensure economic efficiency, encourage competition and protect consumer interests;
(b) define the property, interest in property, rights and liabilities to be allocated—
(i) by specifying or describing the property, rights and liabilities in question; or
(ii) by referring to all the property, interest in property, rights and liabilities comprised in a described part of the transferor's undertaking; or
(iii) partly in one way and partly in the other;
(c) provide that any rights or liabilities, stipulated or described in the scheme shall be enforceable by or against the transferor or the transferee;
(d) impose on the transferor an obligation to enter into such written agreements with or execute such other instruments in favour of any other subsequent transferee as may be stipulated in the scheme.
(e) mention the functions and duties of the transferee;
(f) make such supplemental, incidental and consequential provisions as the transferor considers appropriate including provision stipulating the order as taking effect; and
(g) provide that the transfer shall be provisional for a stipulated period.
(6) All debts and obligations incurred, all contracts entered into and all matters and things engaged to be done by the Board, with the Board or for the Board, or the State Transmission Utility or generating company or transmission licensee or distribution licensee, before a transfer scheme becomes effective shall, to the extent specified in the relevant transfer scheme, be deemed to have been incurred, entered into or done by the Board, with the Board or for the State Government or the transferee and all suits or other legal proceedings instituted by or against the Board or transferor, as the case may be, may be continued or instituted by or against the State Government or concerned transferee, as the case may be.
(7) The Board shall cease to be charged with and shall not perform the functions and duties with regard to transfers made on and after the effective date.
Explanation.—For the purposes of this Part,—
(a) “Government company” means a Government company formed and registered under the Companies Act, 1956 (1 of 1956);
(b) “company” means a company to be formed and registered under the Companies Act, 1956 (1 of 1956) to undertake generation or transmission or distribution in accordance with the scheme under this Part.
Thus, Section 131 of the Electricity Act provides for vesting of property of the Board in the State Government. It states that after the property is vested in the State Government by the State Electricity Board, the State Government shall re-vest the property in a Government company or in a company or companies in accordance with the transfer scheme. Section, 131(4) of the Electricity Act contemplates the formulation of such a transfer scheme.
At this juncture, it needs to refer herein Section 133 of the Electricity Act which refers to provisions related to officers and employees, and states as follows:
Provisions relating to officers and employees.—The State Government may, by a transfer scheme, provide for the transfer of the officers and employees to the transferee on the vesting of properties, rights and liabilities in such transferee as provided under Section 131.
(2) Upon such transfer under the transfer scheme, the personnel shall hold office or service under the transferee on such terms and conditions as may be determined in accordance with the transfer scheme:
Provided that such terms and conditions on the transfer shall not in any way be less favourable than those which would have been applicable to them if there had been no such transfer under the transfer scheme.
Provided further that the transfer can be provisional for a stipulated period.
Explanation.—For the purposes of this section and the transfer scheme, the expression “officers and employees” shall mean all officers and employees who on the date specified in the scheme are the officers and employees of the Board or transferor, as the case may be.
Thus, as per the mandate of Section 133 (2) of the Electricity Act, the transferred personnel are to be governed by terms and conditions as may be determined in accordance with the transfer scheme. The proviso to Section 133 (2) protects the interest of the transferees in so far as the conditions of their service are not to be less favorable than those which would have been applicable to them had no transfer taken place.
As per the contention of the learned counsel for the respondent the MACP Scheme was implemented after the transfer and is new general Scheme applicable to all. 101. Since, the Section 133 of Electricity Act, 2003 guarantees that terms of service shall not be less favourable upon transfer to a successor company and the MACP Scheme was implemented after the transfer and is a new, general scheme applicable to all, therefore Fixing pay correctly under this new scheme cannot be termed as making terms "less favourable." Further from the aforesaid Sections of the Act 2003 it is evident that the Act 2003 does not fossilize pay scales or prohibit corrections.
This Court, in view of the discussions made hereinabove and law laid down by Hon’ble Apex Court, finds no illegality in the impugned order dated 18.11.2016 whereby the Office Order No. 292 dated 24.02.2012 has been withdrawn as also the consequential orders vide Notification No. 338 dated 26.07.2017 for G.T.O. and notification No. 1313 dated 18.07.2017 and in our considered view the same requires no interference by this Court.
Further from perusal of the impugned order it is evident that the learned writ Court’s finding that Office Order No. 292 was not properly approved by the full Board is a finding of fact based on record and even if signed by the Secretary, if it substantially altered the Board's sanctioned Resolution No. 2492 without Board approval, it was without jurisdiction. Its subsequent withdrawal was thus valid.
The learned Single Judge, taking into consideration the aforesaid fact, has refused to interfere with the impugned orders, which in our considered view, as per the discussion made herein above, cannot be faulted with.
Accordingly, the instant intra-court appeals fail and are dismissed.
Pending Interlocutory Application(s), if any, stands disposed of.