Subhash Chander & Ors. vs Union Of India & Ors.

Per: - Ram Mohan Johri, Administrative Member

The applicants have filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -

The present Original Application has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985, assailing the orders dated 05.01.2022 and February, 2022, whereby their claim for grant of one additional increment at the rate of 3% on account of third financial upgradation under the Modified Assured Career Progression (MACP) Scheme/promotion as Master Craftsman (MCM) has been rejected. The applicants further seek a direction to the respondents to extend to them the benefit allegedly granted to similarly situated employees, namely Bishnu Lal and Shamsher Chand.

The applicants Nos.1 to 11 are retired employees of the Military Engineer Services (MES), whereas applicants Nos.12 to 14 were serving employees at the time of institution of the O.A. Their case, in substance, is that after completion of 30 years of service and while drawing Grade Pay of Rs.4,200/-, they became entitled to one increment at the rate of 3%. For this purpose, reliance has been placed upon the communication dated 14.12.2016 issued by the Integrated Headquarters of Ministry of Defence (Army), AG's Branch/MP-4 (Civ), as also upon the benefit subsequently granted to Bishnu Lal and Shamsher Chand pursuant to proceedings in O.A. No.061/00438/2018.

The applicants contend that Bishnu Lal and Shamsher Chand were granted one increment at the rate of 3% under MACP-III in Grade Pay of Rs.4,200/- after completion of 30 years of service vide Part-II Order dated 04.02.2019. Claiming themselves to be similarly situated, the applicants represented before the respondents for extension of the same benefit. Their claim, however, came to be rejected vide the impugned orders dated 05.01.2022 and February, 2022.

The respondents have resisted the O.A. Their specific stand is that the applicants have already received three financial/pay upgradations through regular promotion/ACP/MACP and have attained the last post available in their promotional hierarchy. It is further pleaded that, in MES, MCM carrying Grade Pay of Rs.4,200/- is the terminal post in the hierarchy of tradesmen and there exists no promotional post of Chargeman. According to the respondents, the benefit envisaged in the communication dated 14.12.2016 cannot, therefore, be claimed by the applicants in the manner sought by them.

The respondents have also relied upon the instructions dated 31.12.2012 issued by the Engineer-in-Chief's Branch, according to which financial upgradation under the ACP/MACP Scheme cannot exceed what would be admissible to an employee on normal promotion. They have accordingly maintained that the benefit granted in some other case cannot, by itself, furnish an enforceable right in favour of the present applicants contrary to the applicable service structure and instructions.

We have heard learned counsel for the parties and carefully perused the pleadings and material available on record.

The principal question which arises for consideration is whether the applicants, after having received the financial upgradations/promotions admissible to them and after their service position remained settled for a considerable period, can seek reopening of such settled position for grant of another financial benefit by placing reliance upon the benefit subsequently extended to certain other employees.

At the outset, it is pertinent to notice that the applicants do not dispute the basic factual position asserted by the respondents that they have already been granted three pay upgradations by way of regular promotion/ACP/MACP and have reached the terminal level in the hierarchy of tradesmen in MES. The hierarchy placed on record shows MCM carrying Grade Pay of Rs.4,200/- as the last post in the cadre. There is no post of Chargeman in the promotional hierarchy of MES tradesmen.

The communication dated 14.12.2016, upon which substantial reliance has been placed by the applicants, cannot be read in isolation. As pleaded by the respondents, the benefit of fixation equivalent to one increment contemplated therein relates to the situation where an incumbent holding the post of MCM carrying Grade Pay of Rs.4,200/-proceeds on financial upgradation/promotion to the post of Chargeman carrying the same Grade Pay. The respondents have specifically explained that such a post does not exist in the hierarchy applicable to the applicants.

Equally significant is the departmental stipulation dated 31.12.2012 relied upon by the respondents, according to which financial upgradation under ACP/MACP cannot be more than what would be available on normal promotion. MACP is essentially a financial progression mechanism intended to address stagnation. It cannot be construed so as to create an additional promotional stage or financial advantage which is otherwise not available under the governing service structure merely because the employee has completed a particular length of service. In the present case, the applicants have already received the pay upgradations admissible to them and have reached the terminal level in their hierarchy.

There is another important aspect of the matter. The applicants seek to disturb financial and service positions which had attained finality long ago. The material on record indicates that their claim essentially relates to financial upgradations arising out of service rendered over several decades. Most of the applicants had already retired by the time the present proceedings were instituted. The applicants cannot, after allowing their respective pay fixation and financial upgradations to remain undisturbed for years, seek reopening of the entire settled position merely because a benefit was subsequently extended to some other employees.

Service jurisprudence attaches considerable importance to finality of matters relating to seniority, promotion, pay fixation and financial upgradation. Once such matters have remained settled for a substantial length of time, reopening them belatedly may have cascading consequences upon the administrative and financial arrangements already made. A stale service claim cannot acquire a fresh cause of action merely because an employee makes repeated representations before the authorities. The settled position cannot ordinarily be unsettled after an inordinate lapse of time in the absence of a clear and subsisting legal right.

In the present case, no satisfactory explanation is forthcoming as to why the applicants did not question their respective financial upgradations/pay fixation at the appropriate stage. The subsequent representations and the rejection thereof in the years 2021-2022 cannot, by themselves, revive a claim which had its foundation in events occurring much earlier. The impugned rejection orders cannot be treated as giving rise to an entirely fresh cause of action so as to erase the delay and laches attached to the substantive claim.

Much emphasis has been laid upon the case of Bishnu Lal and Shamsher Chand. We have carefully considered this submission. The record shows that O.A. No.061/00438/2018 filed by the said employees was disposed of with a direction to the respondents to consider their prayer and pass a speaking and reasoned order. Thereafter, the respondents extended certain benefits to them. Significantly, the order of the Tribunal relied upon by the applicants was essentially an order directing consideration of their claim; it did not adjudicate and declare, as a general proposition applicable to all MES employees, an indefeasible entitlement to the additional increment now claimed by the applicants.

Merely because a particular financial benefit has been extended to another employee would not automatically confer a corresponding enforceable right upon every employee claiming similarity. The claim has necessarily to be tested on the touchstone of the applicable statutory rules, departmental instructions, promotional hierarchy and the individual service particulars. Equality cannot be invoked in abstraction from the governing service rules. The applicants must establish an independent legal entitlement to the benefit claimed by them.

In the present matter, the applicants have not been able to demonstrate that despite having already received the admissible financial upgradations and reaching the terminal post of MCM, they possess an independent right under the applicable instructions to yet another increment of 3%. The fact that the post of Chargeman, which forms the basis of the respondents’ interpretation of the communication dated 14.12.2016, does not exist in the MES tradesmen hierarchy is a material distinction which cannot be ignored.

The Court/Tribunal exercising judicial review is also required to exercise caution before directing reopening of long-settled service and financial matters. Judicial review cannot be employed to revive stale claims or to reconstruct service benefits after several years when the service position has attained finality, particularly in the absence of violation of a specific statutory provision or an established enforceable right. Administrative certainty and finality are also relevant considerations in service matters.

We are, therefore, unable to accept the contention that the rejection of the applicants’ representations is arbitrary merely because certain other employees were granted the benefit claimed herein. The respondents have disclosed a rational basis for declining the claim, namely, that the applicants have already received the prescribed financial upgradations, have attained the terminal post in their hierarchy, and that there is no post of Chargeman in the MES tradesmen hierarchy. Their stand is also founded upon the departmental instructions governing ACP/MACP benefits.

Viewed from either angle, therefore, the applicants cannot succeed. On merits, they have failed to establish an enforceable right to the additional increment claimed by them under the applicable hierarchy and instructions. Independently, the substantive claim seeks reopening of service and financial matters which had remained settled for a considerable period and suffers from delay and laches. The subsequent representations or grant of benefit to certain other employees cannot furnish a perpetual cause of action for reopening such settled matters.

Consequently, we find no ground warranting interference with the orders dated 05.01.2022 and February, 2022 passed by the respondents. The impugned orders cannot be termed arbitrary or illegal merely because they do not extend to the applicants the benefit granted in an individual case, particularly when the applicants have failed to establish their independent entitlement thereto.

In view of the foregoing discussion, the Original Application is found to be devoid of merit and is accordingly dismissed. The impugned orders dated 05.01.2022 and February, 2022 are upheld. Pending M.A(s), if any, shall also stand disposed of. There shall be no order as to costs.