Smt. Sukhnandni Rani vs Union Of India & Ors.

Hon’ble Dr. Anand S. Khati, Member (A)

In the instant O.A., the applicant, who is a retired Ward Sahayika, has challenged the orders dated 10.12.2019 and 02.01.2020 whereby her claim for correct fixation of pay and grant of appropriate Grade Pay under the CDS (Revised Pay) Rules, 2008 and MACP Scheme was rejected. She has sought for the following relief(s):-

Brief facts of the case, as narrated by the learned counsel for the applicant are:

It is submitted that the applicant was appointed on 25.01.1973 as Ward-Sahayika in Base Hospital, Delhi Cantt. and retired on 31.01.2009 after rendering about 36 years of service. She had been granted two financial upgradations under the ACP Scheme, including the 2^nd ACP in the pre-revised scale of Rs.3050-4590 w.e.f. 09.08.1999. According to her, on implementation of the Revised Pay Rules, 2008 and MACP Scheme, her earlier ACP upgradations were required to be dealt with in accordance with the merger of the relevant pay scales.

It is contended that, instead of granting the benefit legally due to her upon implementation of the Revised Pay Rules 2008, the respondents fixed her pay in PB-1 with Grade Pay of Rs.1900/- w.e.f. 01.01.2006 vide order dated 04.02.2009 as corresponding pay scale of Rs.3050-4590, which had already been granted to her as part of 12 and 24 years financial upgradation under the ACP Scheme 1999, and subsequently granted Grade Pay of Rs.2000/- and Rs.2400/- w.e.f. 01.09.2008 as 2^nd and 3^rd financial upgradation under MACP Scheme 2009 vide order dated 06.09.2011 (post retirement). However, the applicant claims that she was entitled to the 3^rd financial upgradation under MACP, including Grade Pay of Rs.2800/- and ultimately Grade Pay of Rs.4200/- in PB-2, in view of her length of service and the MACP provisions.

The applicant particularly relied upon Para 5 of Annexure-I and Para 28, Illustration (C) of the MACP Scheme, contending that previous ACP upgradations in merged pay scales were required to be ignored for determining MACP benefits. Since she had completed more than 30 years of service, she claims entitlement to the appropriate financial upgradation under the MACP Scheme.

She further relied upon the CDS (Revised Pay) Rules, 2008 and the Government/DoP&T clarifications concerning the treatment of erstwhile Group 'D' employees, particularly the principle that ACP upgradations to certain pre-revised scales were to be ignored for MACP purposes, whereas financial upgradation to Grade Pay of Rs.1900/- was to be counted.

The applicant also relied upon the judgment of the CAT, Ernakulam Bench in O.A. No. 180/00568/2014 dated 03.04.2018 concerning similarly situated employees of Navel Clerks Central Administrative Tribunal^{Association, wherein the Tribunal held that the statutory Revised} Pay Rules could not be overridden by administrative instructions and directed fixation of pay in the revised pay structure with consequential benefits, also highlighting the following paras of observation, which read as under:-

It is, therefore, submitted that the respondents have wrongly interpreted and applied the Revised Pay Rules, 2008 and MACP Scheme, resulting in incorrect fixation of the applicant's pay and pensionary benefits. The applicant has also submitted a comparative chart of existing pay scale & grade pay as per 5^th, 6^th CPC, Revised Pay Rules 2008, ACP/MACP Schemes and Govt. Central Administrative Tribunal^{orders, which is reproduced below:}

The learned counsel further submitted that the applicant’s case is squarely covered by the following case laws:

He further relied upon the DoPT's memorandum dated 05.04.2021, vide which the Government has confirmed that the status of Joint Committee report on anomalies directed by the Hon'ble Supreme Court vide order dated 05.03.2020 in SLP (C) No. 21803/2014 in Union of India vs. M.V. Mohanan Nair & Ors. has been examined and disposed of.

The learned counsel submitted that the principle governing service jurisprudence is that the respondents are bound by the statutory rules and binding Government instructions unless the same are lawfully modified or superseded and cannot, by an internal or erroneous interpretation, deny a benefit available under the applicable rules. However, the respondents’ action suffers from non-application of mind, selective implementation of Government instructions and erroneous interpretation of the revised pay structure.

He further submitted that the DoPT has prescribed treatment for erstwhile Group ‘D’ pay scales and corresponding financial benefits have been extended to similarly situated employees by the Ministry of Defence/CGDA, the respondents cannot deny the same benefit to the applicant without any valid distinguishing ground.

He also submitted that an incomplete or incorrect interpretation of DoPT O.M. dated 16.11.2009 appears to have been relied upon in her case. However, the State cannot adopt one interpretation of its statutory rules for one category of employees and a contrary interpretation for another similarly situated category merely to defeat an individual claim. Such differential treatment of similarly situated employees, without a rational basis, is arbitrary and violative of Articles 14 and 16 of the Constitution.

The applicant, being a retired employee, seeks determination of her claim strictly in accordance with the CCS (Revised Pay) Rules, 2008, ACP Scheme, 1999, MACPS, 2009, DoPT O.M. dated 19.05.2009, instructions dated 16.11.2009 and subsequent clarifications, including dated 05.04.2021.

He also contended that the applicant is not seeking any concession contrary to the rules, but only lawful pay fixation and consequential financial and pensionary benefits arising from correction of the erroneous fixation, which constitutes a continuing and recurring cause of action, resulting in continuous financial loss and hardship.

Opposing the grant of relief in the O.A., learned counsel for Central Administrative Tribunal^{the respondents relying upon the averments contained in the} counter affidavit, submitted that the applicant was granted all the financial upgradations admissible to her under the ACP/MACP Scheme and her pay was correctly fixed.

He further submitted that the applicant was initially recruited as Ward Sahayika in the pre-revised pay scale of Rs. 2610-4000 under the 5^th CPC and was granted financial upgradations under the ACP Scheme on completion of 12 and 24 years of service. Consequent upon implementation of the 6^th CPC, the pre-revised pay scale of Rs. 3050-4590 was revised to PB-1, i.e. Rs. 5200-20200 with Grade Pay of Rs. 1900/- w.e.f. 01.01.2006. The said benefit was treated as the applicant’s 1^st financial upgradation under the MACP Scheme. Thereafter, in accordance with DoPT O.M. dated 19.05.2009, the applicant was granted the 2^nd and 3^rd financial upgradations under MACP with Grade Pay of Rs. 2000/- and Rs. 2400/- respectively, w.e.f. 01.09.2008. Her pay was accordingly re-fixed under the MACP Scheme and the consequential revision of pensionary benefits was duly incorporated in the Corrigendum PPO dated 01.05.2013 issued by PCDA (P), Allahabad.

Thus, he submitted that the applicant has already been granted the admissible financial upgradations and her pay and pension have been revised in accordance with the applicable MACP provisions and Government instructions.

He further clarified that the applicant was granted the 3^rd ACP in the Grade Pay of Rs. 2400/-, and she never reached the Grade Pay of Rs. 2800/- or Rs. 4200/- during her service. Therefore, the benefit of merger of pay scales contemplated under the OM dated 16.11.2009 was not applicable to her.

The respondents further contended that the O.A. seeking Grade Pay of Rs. 4200/- is not maintainable and also barred by limitation under Sections 20 and 21 of the Administrative Tribunals Act, 1985. The applicant had retired on 31.01.2009 and had already received all admissible retiral and service benefits. A belated representation or its subsequent rejection could not revive a stale cause of action. In support of his contention, he relied upon the following case laws:

He also submitted that the applicant's claim pertaining to the year 2008 was raised only in 2020, after an inordinate delay, and that she had accepted her retiral benefits without objection. Hence, no fresh cause of action arose in her favour merely on account of a subsequent representation.

The respondents also relied upon the judgment of the Hon’ble Supreme Court in Union of India v. R.K. Sharma & Ors. in Civil Appeal No. 1579/2021 dated 28.04.2021, submitting that the MACP benefits were applicable w.e.f. 01.09.2008 and not from 01.01.2006.

Accordingly, he submitted that the O.A. is devoid of merit, untenable and liable to be dismissed.

Having heard the learned counsel for both sides at length and carefully perused the pleadings/judgments and material placed on record as well as written synopsis filed on behalf of the applicant, the following questions arise for determination:

The controversy primarily turns upon the proper interpretation of the DoP&T O.M. dated 16.11.2009. For ready reference, the same is reproduced verbatim herein below:-

The aforesaid O.M. makes a clear distinction between two categories of pre-revised Group 'D' scales. The four scales of Rs.2550-3200, Rs.2610-3540, Rs.2610-4000 and Rs.2650-4000, which were replaced by the revised Grade Pay of Rs.1800/-, were directed to be ignored for the purpose of MACPS. However, the Central Administrative Tribunal^{O.M. expressly provides that promotions/financial upgradations} earned by existing Group 'D' employees to Grade Pay of Rs.1900/-, corresponding to the pre-revised scale of Rs.3050-4590, shall be counted for the purpose of MACPS.

The applicant's own case is that she was granted the 2^nd financial upgradation under ACP Scheme in the pre-revised scale of Rs.3050-4590 w.e.f. 09.08.1999. Therefore, on the admitted factual position, the applicant's financial upgradation to Rs.3050-4590 (revised to Grade Pay of Rs.1900/-) cannot be treated as one of those ACP benefits which were directed to be ignored under the O.M. dated 16.11.2009. On the contrary, the express language of the O.M. requires such upgradation to be counted for MACPS. Thus, the very foundation of the applicant's contention that her earlier ACP should be ignored, is untenable.

The applicant's claim also has to be examined in the light of the subsequent judgment of the Hon'ble Supreme Court in Union of India & Ors. vs M.V. Mohanan Nair & Ors., (2020) 5 SCC 421, wherein the Apex Court considered the nature and operation of the MACP Scheme and held that MACP is an incentive scheme intended to alleviate stagnation and that financial upgradation under MACPS is to be granted in accordance with the prescribed Grade Pay hierarchy rather than the Grade Pay of the next promotional post. The subsequent DoP&T O.M. dated 05.04.2021 was issued pursuant to the said judgment and recorded the position that MACP benefits are to operate in the standard Grade Pay/Pay Level hierarchy and not in the promotional hierarchy.

The applicant's prayer for Grade Pay of Rs.4200/- is, however, substantially founded upon the proposition that she should have progressed through the promotional hierarchy from Rs.1900/- to Rs.2400/-, Rs.2800/- and thereafter Rs.4200/-. Such a claim cannot be accepted after the aforesaid authoritative pronouncement of the Hon'ble Supreme Court.

The applicant’s claim for benefits from 01.01.2006 is also squarely answered by the judgment in Union of India vs R.K. Sharma & Ors., Civil Appeal No.1579/2021 and connected matters, decided on 28.04.2021, wherein the Hon’ble Supreme Court dealt with the issue whether MACPS was to be implemented for Central Government civilian employees from 01.01.2006 or 01.09.2008 and it was held that MACP is an incentive scheme and that the benefits flowing from ACP/MACP are not part of the revised pay structure. It was further held that the MACPS was to be implemented from 01.09.2008 and not from 01.01.2006. The Court accordingly set aside the contrary judgment of the Delhi High Court. In view of the said binding judgment, the applicant cannot claim MACP financial upgradation w.e.f. 01.01.2006. Consequently, the prayer for Grade Pay of Rs.2800/- or Rs.4200/- w.e.f. 01.01.2006 cannot be sustained.

The applicant has emphasized that she had completed approximately 33 years of service as on 01.01.2006 and approximately 36 years by the date of retirement. There is no dispute with the fact that the applicant rendered long and substantial service. However, length of service by itself does not confer an automatic right to a particular Grade Pay under MACPS. MACPS is a scheme containing specified conditions for financial upgradation. The benefit has to be determined with reference to the Grade Pay already earned, the number of financial upgradations already received, and the relevant effective date under the Scheme.

The applicant's earlier financial upgradation to Grade Pay of Rs.1900/- was expressly countable. The respondents thereafter granted Grade Pay of Rs.2000/- and Rs.2400/- as the 2^nd and 3^rd financial upgradations under MACP Scheme w.e.f. 01.09.2008. In the absence of any demonstrated error in the counting of these financial upgradations, the applicant cannot claim an additional financial upgradation merely by relying upon the total length of her service.

Furthermore, the judgments relied upon by the applicant Central Administrative Tribunal^{do not advance her case being distinguishable on facts. The} judgment dated 12.07.2017 in W.P.(C) No.909/2015, to the extent relied upon by the applicant for claiming progression to Grade Pay of Rs.2400/-, Rs.2800/- and Rs.4200/- cannot override the subsequent authoritative pronouncements of the Hon'ble Supreme Court on the scope and operation of MACPS.

The general principles concerning implementation of Government instructions cannot be disputed, but those principles do not entitle the applicant to a benefit contrary to the express terms of the applicable MACP Scheme as authoritatively interpreted by the Supreme Court. A decision of a High Court or Tribunal must necessarily yield to a subsequent binding pronouncement of the Hon'ble Supreme Court on the same legal issue.

The applicant has also relied upon the DoP&T O.M. dated 05.04.2021. The said O.M., however, does not confer upon the applicant a substantive right to Grade Pay of Rs.4200/-. On the contrary, it was issued pursuant to the Supreme Court's decision in M.V. Mohanan Nair (supra) and records that MACP benefits are to be granted in the standard hierarchy of Grade Pay/Pay Levels and not in the promotional hierarchy. Therefore, the reliance placed upon the said O.M. is misplaced.

The applicant has also pleaded violation of Articles 14 and Central Administrative Tribunal^{16 on the ground that similarly situated employees were allegedly} granted higher Grade Pay by other departments/organisations. It is settled law that an employee seeking parity must establish that those employees are similarly situated in all material respects and that the benefit extended to them was itself lawful. No material has been placed before us establishing that the alleged employees were identically situated with the applicant in respect of cadre, applicable rules, date of financial upgradation, number of ACP/MACP benefits already availed and the orders governing their service conditions. Accordingly, this contention also does not assist the applicant.

Moreover, the applicant retired on 31.01.2009. The impugned orders were passed on 10.12.2019 and 02.01.2020 after representations made by her. The respondents contend that a representation made after an inordinate delay cannot revive a stale cause of action. We find considerable force in their submission. The original fixation and grant of financial benefits took place more than a decade before filing of the present O.A. The applicant had retired and her pensionary benefits had already been settled, followed by issuance of the Corrigendum PPO dated 01.05.2013. A subsequent representation does not, by itself, confer a fresh cause of action where the underlying claim had already accrued and had become stale.

At the same time, claims concerning pension may, in appropriate circumstances, have a recurring component. However, that principle does not mean that a claimant can reopen a concluded pay-fixation dispute after an inordinate delay and thereby obtain a declaration that the original fixation itself was illegal. In any event, even if the objection of limitation were to be viewed liberally in favour of the applicant, the applicant’s claim fails on merits also.

In view of the foregoing discussion, we find no infirmity in the impugned orders dated 10.12.2019 and 02.01.2020 warranting interference by this Tribunal.

The O.A. is accordingly dismissed being devoid of any merit. However, there shall be no order as to costs. Pending MAs, if any, shall also stand disposed of.