IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDCITION
SPECIAL LEAVE PETITION [C] NOS. 10475-10476 OF 2022
IN THE MATTER OF
Union of India and Ors. …Petitioners
Versus
R. K. Vidhyarthi & Ors. …Respondents
AND IN THE MATTER OF:
Written Submissions on Behalf of the Respondents
Factual Background
The Respondents are initially appointed as Inspectors and subsequently
promoted as Superintendents. They were granted 2 nd Upgradation under
the Assured Career Progression (ACP) Scheme of 1999 on completion of 24
years of service as regular Superintendents; accordingly, were fixed with
the pay scale of Rs.8000-13500. In 2006, the Respondents were given
Non-Functional Grade w.e.f. 01.01.2006 as their Post was upgraded on
recommendation of 6th CPC and were given one increment of 3% with
Grade Pay of Rs.5400/- on completion of 4 years of service as Regular
Superintendents. After MACP Scheme came into existence in the year
2009, the benefit granted under NFUG
is being wrongly set-off against the MACP Benefit saying that benefit of
NFUG granted to Superintendent (Group B) officers after completion of 4
years would
be treated/viewed as Upgradation in terms of Para 8.1 of the MACP dated
19.05.2009 and the same would offset against one financial upgradation
under the MACP Scheme.
Legislative Background
In August 1999, under the provisions of the Assured Career Progression
(ACP) Scheme of 1999, two financial upgradations were granted to the
Central Government employees in the then existing promotional hierarchy.
However, on finding some anomaly (para-6.1.15 of 6th CPC Report) in the
said scheme, the Government of India (Ministry of Personnel, Public
Grievances and Pensions [DoPT]) superseded the said scheme with a new
scheme i.e., Modified Assured Career Progression Scheme (MACP).
In 2006, the Non-Functional Up-Gradation (NFUG) was accorded to the
Applicants w.e.f. 01.01.2006 and were given one increment of 3% with
G.P. of Rs.5400/- on completion of 4 years of regular service as
Superintendent or in grade pay of Rs.4800/-.
On 19.05.2009, the MACP Scheme came into existence which provided for
three upgradations after 10, 20 and 30 years respectively in the
immediate next higher Grade Pay in the hierarchy of recommended
revised payas
grade pay band and
prescribed in the CCS (Revised Pay) Rules, 2008 and not in
the promotional hierarchy as was available in the ACP Scheme. The
financial
upgradations under the MACPS is admissible upto the highest grade pay of
Rs.12000 in PB-4. The MACP Scheme superseded the ACP Scheme.
Question of Law
A. Whether the Non-Functional Upgradation ( ‘NFUG’) can be treated as
promotion or financial upgradation for the purposes of Modified
Assured Career Progression Scheme (‘MACP’)?
B. Whether the benefit of non - functional Grade Pay granted can be set
off against the financial upgradation under MACPS?
Contentions
• It is a trite principle of law that the pith and substance of an
act/order has to be considered in order to determine the similarity
with any other scheme. In the instant case, the NFUG granted to the
Respondents and other similarly situated persons to PB-2 (GP:5400)
on successful completion of 4 years is NOT similar to the MACP
Scheme formulated vide G.O. No.35034/3/2008 Estt. (D) dated 19 th
May 2009.
• The grant of GP of Rs.5400 in PB-2 is an attempt to reconcile the
difference in pay structure of the persons occupying the Group-B
posts vis-à-vis Group-A posts carrying same grade pay (5400) in PB-
3. The Pay Commission had recommended all the Group-B services
enumerated in Para-1 Clause X Sub-Clause (a) to (e) of the
Resolution Dated 29.08.2008 passed by the Ministry of Finance in
No.1/1/2008- I.C, be placed under PB-2. The Government in its
wisdom modified the above recommendation and upgraded the Pay
covered under Sub-Clause (a) to (d), in PB-3. However, the Group of
Officers covered in Clause (e) were kept at PB-2. The Clause also
contemplated the grant of GP of 5400 on completion of 4 years to
these Group-B services. This Clause was intended to maintain parity
in their grade pay of Rs.5400/- with other similarly positioned Group-
B services and, the Group-A direct recruits who were placed at the
time of appointment at PB-3 (GP:5400). The relevant portions of the
said resolution are extracted below:-
“(x)Regarding Group 'B' cadres, the Commission's
recommendations will be modified in the following manner: -
a) After 4 years of regular service in the entry grade of
Rs.4800 in PB-2, Officers belonging to Delhi and
Andaman & Nicobar Islands Civil Service and Delhi and
Andaman & Nicobar Islands Police Service will be
granted the nonfunctional grade of Rs.5400 in PB-3 and
not in PB-2;
b) After 4 years of regular service in the Section
Officer/Private Secretary/ equivalent grade of Rs.4800
grade pay in PB-2, officers of Central Secretariat Service,
Central’ Secretariat Stenographers Service and other
similarly placed HQ services will also be granted the non-
functional grade of Rs.5400 in PB-3 and not in PB-2;
c) In the IA&AD and all organized accounts cadres, posts
of Section Officers and Assistant Audit/ Accounts Officers
will be merged and placed in PB-2 with grade pay of
Rs.4800 as recommended by the Commission. In
9. Income Tax 7500 7500 PB- 480 7.15.1
0 7
Officers/Superintendents, 12000 1200 2
Appraisers etc. (Customs 0 PB-
CPC's 540
& recommendatio
Central Excise) 8000 2
0
ns, Audit/be placed in PB-2 with grade pay of Rs.5400 and Senior
1350
Accounts
Officers (AOs)AOs will be placed 0 in PB-3 with grade pay of Rs.5400;
will
(after
d) Group B officers of Ministry of Railways in the pre-
revised scale of Rs. 8000-13500 will be granted Grade
Pay of Rs.5400 in PB-3 instead of PB-2.
e) Group B officers of Departments of Posts, Revenue,
etc. will be granted Grade Pay of Rs.5400 in PB-2 on non-
functional basis after 4 years of regular service in the
grade pay of Rs.4800 in PB-2.”
The relevant portions of the Central Civil Services (Revised Pay)
Rules,
2008, are extracted below:-
• Moreover, as per Clause 2.2.19 Sub-Clause X (Salient Features) of
the Report of the 6th Central Pay Commission of March 2008, the
revision in the pay bands was done to ensure that existing parity in
Group-B and Group-A posts is not disturbed. The same is extracted
below for the kind perusal of this hon’ble court:-
“The scale of Rs.8000-13500 is the entry grade for Group A posts
for which the Running Band PB-3 has been recommended.
Many Group ‘B’ posts had been extended the scale of Rs.8000-
13500 even though these continued to be Group ‘B’ posts. All
such Group ‘B’ posts shall now be placed in the running band
PB-2 along with a grade pay of Rs.5400. To ensure that
existing parity in terms of pay scale of these posts vis-à-vis the
entry scale of Group A posts is not disturbed, the same grade
pay of Rs.5400 has been prescribed.”
(The true copy of the Report of the 6 th Central Pay Commission of
March 2008 is marked and annexed as )
• The MACP Scheme contemplates upgradation to the next higher
Grade Pay on completion of certain period of service irrespective of
the post occupied by the employee. The NFUG in the instant case
contemplates an upgradation from GP:4800 to GP:5400 after
completion of four years in the post of Superintendent/grade pay
4800. Hence, the eligibility criteria for both the schemes are distinct
and severable. Hence, treating both the schemes to be identical is
nebulous.
• The clarifications issued by the Government of India (Ministry of
Personal, Public Grievance and Pensions) [Link].35034/3/2008-Est.(D)
[Annexure-P12, of Affidavit in Compliance] in Entry 16 contemplates
the treatment of upgradation to GP:5400 in PB-3 as a financial
upgradation for the purpose of MACP. The said clarification cannot be
and ought not to be extended to GP:5400 in PB-2. The above
clarification further reiterates that GP:5400 in PB-2 was not intended
by the rule making authority to fall within the ambit of MACP, as the
authority was acquainted with the existence of GP:5400 in PB-2 and
chose not to include the same in the said clarification. It is a cardinal
rule of interpretation that the legislator or any rule making authority
for that matter inserted every part in the said statute/rule/document
for a purpose. In the case of Dilawar Balu Kurane v. State of
Maharashtra (2002) 2 SCC 135 this hon’ble court held the
following:- “This is a settled principle of interpretation that words in
a statute should not be brushed aside as the courts always presume
that legislature inserted every part thereof for a purpose and the
legislative intention is that every part of the statute should have
effect.”
• The MACP Scheme effective from 01.09.2008 introduced by G.O.
No.35034/3/2008 Estt. (D) dated 19 th May 2009 repeals and replaces
the earlier Scheme in the name and style of ACP Scheme of August,
1999. The Government was specifically aware of another Scheme
introduced vide Central Civil Services (Revised Pay) Rules, 2008 with
effect from 01.01.2006 and chose not to amend the scheme by a
subsequent MACP Scheme as stated supra. It is a trite principle of
law that there can be no presumption that a subsequent law
regulating the same subject matter repeals the earlier rule. In this
regard, reference may be made to Maya Mathew v. State of
Kerala & Ors. (2010) 4 SCC 498.
• It is a cardinal principle of law that MACP Scheme is an incentive
accorded to the employees. If two interpretations are possible, then the
view favoring the employee has to be given effect to. In the instant case,
it is a plausible view that the legislature intended to apply both
NFUG and MACP to the given Respondents and similarly placed
persons.
• The contention of the Petitioner to the effect that NFUG Scheme and
the MACP Scheme are to be merged in grant of incentive to the
Respondent, would tantamount to supply of words to the MACP
Scheme. It is to be further noted that any rule of exclusion has to be
strictly interpreted in the favor of an employee, the interpretation
sought to be applied by the Petitioner would tantamount to
supplying words to the detriment of according incentive to the
employee.
• The object of MACP Scheme is to alleviate the effects of stagnation
of service by according Non-Functional Financial Upgradation. The
period contemplated under the Scheme to effect such incentive is 10
years. The NFUG Scheme contemplates upgradation of post after
serving four years in that Post/grade pay. The term of four years by
no stretch of imagination can be considered as stagnation. In such
circumstances, the incentive granted after a period of 4 years is
distinct from that of the financial upgradation granted under MACP
Scheme. Furthermore, the MACP Scheme contemplates exclusion of
such benefit only on the condition that the person has already been
granted promotion. The relevant portion is extracted below:-
“The MACP envisages merely placement in the immediate next
higher grade pay as given in Section I, Part-A of the first
been earned by the employee during this period.”
It is humbly submitted that the only circumstance under which the
application of the MACP Scheme is excluded is the according of
promotion to the employee in question. The Scheme does not
contemplate the exclusion of the said scheme in the light of the
existence of any other benefit accruing through Pay Rules. In such
circumstances, the benefit granted by upgradation of Post viz: NFUG
cannot be read into the MACP Scheme.
• The MACP Scheme contemplates the placement in the immediate
next higher grade pay in the hierarchy of the recommended revised
pay bands and grade pay as given in Section 1, Part-A of the first
schedule of the CCS (Revised Pay) Rules, 2008. The Section 1, Part A
of the first schedule of the CCS (Revised Pay) Rules, 2008 specifically
excludes those posts and revised scales which are notified
separately. The relevant portion is extracted below:-
“Revised Pay Bands and Grade Pays for posts carrying present
scales in Group ‘A’, ‘B’, ‘C’ and ‘D’ except posts for which
different revised scales are notified separately.”
It is humbly submitted that the pay scales/revised grade pay for the
Applicants after a period of 4 years of service in a particular post was
notified separately in Section II Part-C. The relevant portions of the
same is extracted below:-
9. Income Tax 7500 7500 PB- 480 7.15.1
0 7
Officers/Superintendents, 12000 12000 2
Appraisers etc. (Customs 8000 PB-
2 540
& Central Excise) 13500
0
(after
4
years)
In the light of the same, the revision in grade pay from GP:4800 to
GP:5400 under NFUG, due to upgradation of Post, does not fall within
the ambit of MACP Scheme.
• It is humbly submitted that Para 8 of the MACP Scheme is not
applicable to such revision from GP:4800 to GP:5400 under NFUG on
completion of 4 years. The relevant portions are extracted below:-
“8. Promotions earned in the post carrying same grade pay in
the promotional hierarchy as per Recruitment Rules shall be
counted for the purpose of MACPS.
8.1 Consequent upon the implementation of Sixth CPC's
recommendations, grade pay of Rs. 5400 is now in two pay
bands viz., PB-2 and PB-3. 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 MACP Scheme.”
The applicability of Para 8 encompasses promotions earned in the
same grade pay in the promotional hierarchy as contemplated in the
recruitment rules. In the instant case, it is not a case of promotion
and
it is a case of financial benefit accruing due to upgradation of Post. It is
a trite law that the sub-clause has to be interpreted within the scope
and ambit of the parent clause.
In the instant case, the Sub Para 8.1 has to be interpreted within the
ambit of Clause 8. The clarification to the extent that GP:5400 in PB-
2 and GP:5400 in PB-3 shall be treated as distinct is contingent on
fulfilling in conditions enumerated in Para 8 i.e., promotion in
accordance with the recruitment rules of other Group-B services
happens in the same grade pay. Hence, it is humbly contended that
Para 8 and Para 8.1 has no application in the instant case.
Description ACPS MACPS
th
Source of Scheme 5 CPC 6th CPC
O.M. No.35034/1/1997-Estt(D) of No.35034/3/2008-Estt.(D) of 19th
9th August 1999 May 2009
Effective
ACPS:from 09.08.1999
Assured Career (para-8)
Progression Scheme. 01.09.2008 (para-9)
Effective upto 31.08.2009 Till date
MACPS: Modified(para-9
Assured Career Progression
of MACPS OM) Scheme
Benefit norms In Promotional Hierarchy In next higher grade pay of
Both the Schemes
Section- 1 Part-A of First schedule
are implemented
of Rules 2008. (Para-2, of
to address
Eligibility Annexure-I)
At intervals of 12,24 years of At intervals of 10,20,30 years of
stagnation of
Conditions (1) service; if Promotion is not service; if Promotion is not earned
employees.
earned meanwhile meanwhile.
( As prescribed for normal Benchmark- ‘Good’
2 promotion (para-6) Upto GP:6600. (Para-17, of
) Annexure-I)
Description Para of Para of: Corresponding rule/ reference in: CCS(RP)
6th CPC GoI Resolution No. Rules 2008 of 29th August 2008.
1/1/2008-I C of 29th Gazette Notification G.S.R.622(E)
August 2008
Same Grade Pay 2.2.19 1(x)(a/b/c/d/e) Upgraded Posts for (a)(b)(c) are mentioned
5400 on Page-54(MoHA Sr.18),53(MoF Sr.1),
In two Pay Bands 48(XX-4). For (e), Page-54 at Sr no.9 in
Section-II of Part-C in first Schedule
Grade Pay Defined in Rule 3(6)
MACP Scheme 6.1.15 1(vii) Not part of Pay Rules 2008
The Post of Superintendent (Customs and Central Excise) has been upgraded on
recommendations of 6th CPC, granting revised pay structure [Rule-3(7)] of PB-2(GP:5400) with
same grade pay of Rs.5400/- with intention to maintain existing parity in Group-A and Group-B
posts in their ‘pre-revised i.e. present scale’ [Rule-3(4)] of 8000-275-13500; once person
completes 4 years of service in the grade pay Rs.4800/-, irrespective whether he is already
granted three promotions/financial upgradations. (CBIC letter [Link].A-23011/06/[Link] dated
2nd January 2023)
Name Rajesh Kumar Kashiv Remarks of the Petitioners Remarks by the Respondents
Date of appointment Equivalent GP4600 (PB-2)
Page 1 of 1
01.03.1982 Appointed as
Inspector. Pay scale ------
EXHIBIT-A :: Respondents’(revised):5500-9000
comments on Affidavit- in-
1st ACP 9.08.1999 Rightly granted 1st ACP GP4800 PB-2. CORRECTLY granted.
Compliance filed by Petitioners
Pay scale :6500-10500
on 20.7.2023 CHART( Pp8,9,10)
in case of Rajesh Kumar Kashiv .
Promotion 30.01.2002 Superintendent Same Grade Pay of GP4800 PB-2 maintained
Same pay scale so no ------
revision –
Pay Scale : 6500-10500
Upgradation of pay scale of Pay scale: .7500-12000, Pay scale was revised/changed on the basis of 5 th
Superintendent as per Ministry Grade Pay Rs.4800, Pay CPC recommendation. It is not treated as Promotion
------ under ACPS. It is ignorable as per Para 5of
order dated 21.04.2004 Band-2
Annexure to MACPS.
Non-functional upgradation after 30.01.2006 ** Later on counted as 2nd ACP GP4800 (PB-2) to GP5400 (PB-2). is due to the
4 years of regular service as Pay scale:- Rs.8000-13500, upgradation of Post. NFUG has NOT been granted
Superintendent as per CCS Grade Pay Rs.5400, in GP 5400 PB-3. Also a 2nd ACP cannot be
Pay Band-2 granted, that too in 4 years. NFUG granted in 4
(Revised Pay) Rules, 2008
years is neither a promotion nor a 2nd ACP.
2nd ACP 01.03.2006 *** erroneously granted, anomaly rectified and 2nd ACP Scheme prescribes financial benefits in
Pay scale:8000-13500, ACP granted w.e.f. 30.01.2006 in 5400 (PB-2) by promotional hierarchy i.e. Gr-A post Asstt.
GP 5400, PB-3 virtue of grant of NFU. Later on, GP 5400 in PB-3 Commissioner and therefore , upgradation to GP
5400 in PB-3 has been granted correctly as a 2nd
was granted as 3rd financial upgradation under
ACP on 01.03.2006, after 24 years of service.
MACP scheme on completion of 30 years of service.
3rd MACP 01.03.2012 # *** Erroneous, hence Withdrawn. Immediate next higher grade pay GP6600 PB-3 was
(erroneously granted, therefore Pay scale: 10325-10975, correctly given on 01.03.2012 as 3rd MACP after
withdrawn) GP 6600, PB-3 30 years service.
# Pay scale of Rs.10325-10975 was NEVER given as it CEASED TO EXIST under the 6th CPC e.f.1.1.2006. It is FALSE and INCORRECT statement by the petitioner .
* The Petitioner is attempting to mislead this Hon’ble Court by bringing in NEW, irrelevant facts.
** Petitioner cannot PREPONE the event of grant of 2nd ACP under ACPS to ANY OFFICER before completion of 24 years (from 01.3.2006 to 30.1.2006 in this case) .
*** Grant of GP 6600PB-3 is correct, and not erroneous. To count 2nd ACP as 3rd MACP violates Para 11 of MACP Scheme itself. Further ,Para 28 C provides for 3rd
MACP upgradation to Respondents who have got 2nd ACP. Petitioners cannot PREPONE effect of MACPS from 01.09.2008 to 01.01.2006. It is AGAINST LAW.