Justice K.Haripal

1. Applicant is a Technical Assistant retired on 30.11.2016 from Naval Dockyard, Visakhapatnam. The grievance of the applicant is that despite the fact that he had put in more than 30 years of service on 01.09.2008, the date on which the MACP scheme was introduced, he was not granted the required 3rd financial upgradation and therefore seeks intervention of this Tribunal and seeks a declaration that he is entitled to get 3rd financial upgradation with grade pay of Rs.4,800/- with effect from 01.09.2008 and a direction to the respondents to grant him such benefits.

2. The applicant had started his official career as Control Fitter Grade-I on 07.05.1976 in the scale of Rs.260-400. At that time, the grades of Tradesmen existed in Naval Dockyard were Fitter Grade-II, Fitter Grade-I and Mechanic. Subsequently he was promoted on 18.10.1981 as Mechanic in the scale of Rs.330-560. Meanwhile, on implementation of the recommendations of the Expert Classification Committee appointed in terms of the 3rd Central Pay Commission, the grades of Tradesmen Grade-II, Grade-I and Mechanic were re-designated as Skilled(SK), Highly Skilled Grade-II (HS-II) and Highly Skilled Grade-I (HS-I). Pay of SK and HSII were enhanced to Rs.260-400 and Rs.330-480 respectively and the scale of HS-I was fixed at Rs.380-500. Subsequently, the applicant was promoted as Senior Chargeman with effect from 22.12.1984 and was transferred to the office of the 4th respondent. Meanwhile, on the recommendations of the 5th Central Pay Commission the 1st respondent sanctioned cadre re-structuring of Artisan Staff in Defence Establishments. As per Annexure-A2, HS-II and HS-I were merged with effect from 01.01.1996 and placed in the pay scale of Rs.4000-6000. The 1 st respondent also sanctioned cadre restructuring of Technical Supervisory Staff in the Navy, following which Senior Chargeman was redesignated as Chargeman-II with scale of Rs.5000-8000. On the recommendations of the 5th Central Pay Commission, Assured Career Progression scheme was introduced with effect from 09.08.1999 for mitigating the hardships faced by the employees in cases of actual stagnation in a post. The applicant was granted 2nd financial upgradation in the scale of Rs.5500-9000 with effect from 07.05.2000. Later, while working as Chargeman-II, he was promoted as Chargeman-I with effect from 11.03.2003. Subsequently, he was promoted as Assistant Foreman(Weapon) in the pay scale of Rs.6500-10500 with effect from 30.08.2007. Thereafter, he was promoted as Foreman in PB-2 with grade pay of Rs.4600/- with effect from 20.05.2009. On the recommendations of the 6th CPC, four grades in the structure of Technical Supervisory Staff, Foreman, Assistant Foreman, Chargeman-I, Chargeman-II, were merged into two grade structures, that is Foreman and Chargeman. Foreman and Assistant Foreman were merged to form a single cadre, as Foreman and Chargeman-I and Chargeman-II were merged and formed cadre as Chargeman. Thereafter, he was transferred to the office of the 4th respondent on promotion as Technical Assistant on 30.05.2014. On the recommendations of the 6th CPC, Government have introduced Modified Assured Career Progression scheme (MACP scheme) from 01.09.2008. Under the scheme, three financial upgradations have to be given to all stagnated employees on completion of 10, 20 and 30 years. Applicant completed 30 years of service on 06.05.2005 (sic.). But as on 01.09.2008 he was granted only two promotions, one as Chargeman with effect from 22.12.1984 and second as Foreman with effect from 30.08.2007. Therefore, he is entitled to get the 3rd financial upgradation with effect from 01.09.2008. Though competent authority has recommended and granted him 3rd financial upgradation, the 5th respondent has raised objections. Thereafter, he made representations seeking 3rd financial upgadation with effect from 01.09.2008, but that have not been considered and that has given cause of action for approaching this Tribunal.

3. According to the applicant, on 06.05.2005(sic.) he had completed 30 years of total service. However, he was granted only two promotions, one as Chargeman and second as Foreman. He became eligible for the 3rd financial upgradation under the MACP scheme to the next higher grade pay of Rs.4,800/-. As per judgment dated 08.12.2017 of the Hon'ble Supreme Court in Civil Appeal No.3744/2016 along with identical cases, MACP is a part of pay structure and therefore the benefit of MACP is applicable from 01.01.2006 and not from 01.09.2008. Thus he is eligible for the 3rd financial upgradation from 01.01.2006 and that he had completed 30 years of service on 01.02.2006. Secondly, he was appointed as Control Fitter Grade-I, which was re-designated as HS-I as per Annexure-A2. Although the applicant was promoted as Control Mechanic on 18.10.1981, the re-designated post of which is HS-II as per Annexure-A2, the post of HS-I and HS-II have been merged. Thus promotion earned as Control Mechanic has to be ignored due to the merger of HS-I and HS-II.

4. Respondents filed a reply statement denying the claim of the applicant. According to the respondents, even though such merger had happened, the applicant had already obtained three distinct promotions as Control Mechanic in the pay scale of Rs.380-560, Chargeman with grade pay of Rs.4,200/- and Foreman with grade pay of Rs.4,600/-. According to them, when the merger of posts was reckoned for the purpose of financial upgradation during the relevant period, de-merger also has to be taken whenever applicable. Thus relying on Annexure-R1 they said that the posts of Control Fitter and Mechanic were merged as HS on 20.05.2003 with effect from 01.01.1996, the eligibility or otherwise of an individual for grant of MACP on 01.09.2008 is to be analysed with reference to the hierarchy existed on the date of such 'casualty'. Therefore, the representation of the applicant was considered and found not sustainable by Annexure-R2.

5. In other words, the respondents contend that since the applicant had already obtained three distinct promotions on the proposed date of introducing the MACP, he is not entitled to get higher grade pay of Rs.4,800/- with effect from 01.09.2008. It is also stated that he is the beneficiary of multiple pay fixations and has received such benefits on promotion from the post of Control Fitter, which have to be treated as a distinct promotion, that pay fixations on promotions to the posts of Control Mechanic, Chargeman and Foreman cannot be ignored. Moreover, when the merger of the post was reckoned for the purpose of financial upgradations during relevant period, de-merger also has to be reckoned for the same purpose whenever it is applicable. So, referring to Annexure-R1, the respondents say that de-merger has taken place, so that the contentions of the applicant cannot be sustained and the O.A. is liable to be dismissed.

6. The applicant filed a rejoinder stating that by virtue of condition No.5 in Annexure-A10 that the promotions earned or upgradations granted to those grades in the past under the ACP scheme, which now carry the same grade pay due to merger of pay scale/upgradation of posts recommended by the 6th Central Pay Commission shall be ignored for the purpose of granting upgradations under the modified ACPs. So, according to him, eligibility for financial upgradations of MACP should be as per the conditions laid down in Annexure-A10 and therefore, the proposition that grant of MACP on 01.09.2008 is to be analysed with reference to the hierarchy existing on the date of such casualty cannot be accepted. He reiterated that even after putting in 32 years of service he was granted only two upgradations, so that he is entitled to get the 3rd MACP with effect from 01.09.2008.

7. We heard the learned counsel for the applicant as well as the learned Standing Counsel. The official profile of the applicant is not in dispute. He had entered service as Control Fitter Grade-I on 07.05.1976. Later he was promoted as Mechanic on 18.10.1981 and was promoted as Senior Chargeman, which was later re-designated as Chargeman Grade-II on 22.12.1984. It is also the admitted position that he had obtained the 2 nd financial upgradation on 07.05.2020 in recognition of him having put in 24 years of service, under the ACP scheme. Thereafter, it is the admitted position that he was promoted as Chargeman Grade-I on 11.03.2003, then as Assistant Foreman on 30.08.2007, then as Foreman on 20.05.2009 and ultimately was promoted as Technical Assistant on 30.05.2014. He had retired from service as Technical Assistant on 30.11.2016, after putting in more than 40 years of service. The grievance of the applicant is that even though he had put in 32 years of service as on 01.09.2008, was granted only two financial upgradations, so that he ought to have been granted 3rd MACP with effect from 01.09.2008, the date on which MACP scheme was introduced. According to him, in fact the competent authority had already recommended his case. In this connection, he has referred to Annexures-A11 and A-12 documents However, the 5th respondent, without appreciating the position, rejected the claim and that gave rise to his cause of action for claiming 3rd MACP with effect from 01.09.2008.

8. The learned counsel for the applicant has contended that the respondents have not considered the 5th clause in Annexure-I to Annexure-A10, which ignores financial upgradations granted to the applicant earlier, which has been set off by merger. That means, after the 2 nd MACP granted on 07.05.2020, he has not been granted any hike and as propounded under the ACP and MACP schemes the applicant is entitled to get the 3rd MACP on completion of 30 years of service with effect from 01.09.2008. The competent authority also was convinced of the genuineness of the claim. But that has been illegally objected so that interference by the Tribunal is warranted.

9. On the other hand, the learned Standing Counsel has submitted that since the applicant was already granted three distinct promotions, he is not entitled to get further enhancement of pay scale under the 3rd MACP and he is not entitled to get any relief, as claimed.

10. It is true that by Annexure-A2, merger of posts had taken place with effect from 01.01.2006. Annexure-A2 communication is dated 20.05.2003 and it has operation from 01.01.1996. But we cannot forget the fact that the first promotion was granted to the applicant as Mechanic on 18.10.1981, that is after five years of his entering service. At that time, there was no merger and such a merger had taken effect only from 01.01.1996. In other words, by the time the applicant had obtained promotion as Mechanic on 18.10.1981 and then as Senior Chargeman which was later re-designated as Chargeman Grade-II with effect from 22.12.1984, the posts were distinct. It is true that there was merger of the posts of Highly Skilled Grade I and Grade-II with effect from 01.01.1996. But sub-clause (b) in clause(3) of Annexure-A2 cannot have any application to the applicant since that relates to the post of Master Craftsman only. At that time, the applicant was not a Master Craftsman, but only a Mechanic or Senior Chargeman or Chargeman Grade-II. In other words, by the time Annexure-A2 order was brought into operation from 01.01.1996, the applicant had obtained two promotions as Mechanic and Senior Chargeman.

11. In our judgment, both the contentions raised by the respondents are formidable and relevant. His service profile shows that the applicant had obtained multiple promotions. In regular intervals, he had been granted promotions. He was granted 2nd ACP on 07.05.2020 under the ACP scheme, on completion of 24 years. Then the question is, after 07.05.2020 before the MACP scheme was introduced on 01.09.2008, had he obtained any promotion. To put it in other words, under the Annexure-A10 MACP scheme, a person who has put in 30 years, if did not get any promotion or got stagnated, necessarily he is entitled to get benefit of the 3rd MACP. But after 07.05.2020, the applicant was promoted as Chargeman Grade-I on 11.03.2003 under Annexure-A5, Assistant Foreman under Annexure-A6 on 30.08.2007 and as Foreman on 20.05.2009, under Annexure-A7. Evidently, merger had taken place among four posts of Assistant Foreman, Foreman, Chargeman Grade-I and Chargeman Grade-II. But promotion granted to the applicant as Assistant Foreman on 30.08.2007 cannot be ignored.

12. To put in other words, the applicant had obtained multiple promotions and multiple pay fixations in regular intervals and therefore, it would be double enrichment if he is granted 3rd MACP with effect from 01.09.2008.

13. As already put in, his promotion as Mechanic from the post of Control Fitter Grade-I on 18.10.1981 cannot be lost sight off. AnnexureA2 does not have retrospective effect. It has taken effect only from 01.01.1996, but by the time the applicant had obtained promotion as Mechanic on 18.10.1981 and as Senior Chargeman on 22.12.1984.

14. Secondly, equally relevant is the contention of the respondents that Annexure-R1 de-merger has taken place. As rightly pointed out, when merger is highlighted for the purpose of setting at naught financial upgradations during the relevant period, a de-merger postulated under Annexure-R1 also cannot be ignored. That means, if at all the posts of Tradesman and categories of Control Fitter, Mechanic etc were taken merged, later a de-merger has taken place which has the effect from 01.01.2006. Therefore, his promotion as Mechanic cannot be ignored. As rightly pointed out by the learned Standing Counsel, he has obtained three distinct promotions as Mechanic, Chargeman Grade-I and Foreman. That would nullify any further claim for 3rd financial upgradation.

15. Even otherwise, the purport and philosophy of granting Assured Career Progression is very important. Under the ACP scheme, which came into effect on 09.08.1999, two financial upgradations were postulated, which were available only if no regular promotions during the spells of 12 years and 24 years were availed by the employee. If an employee has already got one regular promotion, he shall qualify for the second financial upgradation only on completion of 24 years of regular service. As per the MACP scheme which came into effect under Annexure-A10, if the persons had got prior promotions or financial upgradations on regular basis, he cannot be entitled to get any further upgradation.

16. The Assured Career Progression scheme was introduced in the 5th Central Pay Commission. It is the settled proposition that the ACP scheme needs to be viewed as a safety net to deal with the problem of genuine stagnation and hardships faced by employees due to lack of adequate promotions. As rightly pointed out by the learned Standing Counsel, a perusal of the profile of the applicant would indicate that he had obtained regular financial upgradations by way of promotions at regular intervals. The three promotions obtained by him, that is as Mechanic on 18.10.1981, Chargeman on 11.03.2003 and Assistant Foreman on 30.08.2007, which post has been re-designated as Foreman, are distinct and separate. In the circumstance that he had secured promotions even after granting the 2nd MACP, any further claim for 3rd MACP with effect from 01.09.1998 would entail double enrichment and therefore the objection raised by the 5th respondent is sustainable.

17. It is true that the competent authority under Annexures-A11 and A12 had taken a different view. But ultimately, the view of the respondents is that he is not entitled to get further enhancement under the MACP scheme. Such a stand, in our view, is genuine and liable to be upheld.

18. Lack of consistency on the part of the applicant is writ large in the pleadings. We do not know as to how a person entering service on 07.05.1976 would complete 30 years service on 06.05.2005. Even taking it as a mistake, in ground-A it is stated that he had completed 30 years of service on 01.02.2006 whereas reliefs are sought from 01.09.2008. These cannot go together. The learned counsel for the applicant has placed reliance on the decision of the High Court in Writ Petition Nos.24894/2016 and 24908/2016 and submitted that the High Court has held that making MACP scheme with retrospective effect from 01.09.2008 is bad in law. According to the learned counsel, the SLP filed against the same stands dismissed. At the same time, we notice that the SLPs were dismissed on 27.01.2020 leaving open the question of law. But in Vice Chairman, Delhi Development Authority v. Narender Kumar and others [JT 2022 (3) SC 147] a Full Bench of the Apex Court has uphled the validity of the provision in the O.M. dated 19.05.2009 whereunder the MACP scheme was introduced. By this O.M., the ACP scheme stands superseded and MACP scheme came into effect from 01.09.2008, with retrospective effect. The Tribunal had upheld the validity of this clause giving retrospective effect to the MACP scheme from 01.09.2008. The Karnataka High Court reversed that finding. But in the decision in Vice Chairman, Delhi Development Authority, quoted supra, the Supreme Court has since upheld the validity of the clause, giving retrospective operation from 01.09.2008. That means, the Karnataka High Court decision does not hold good.

19. Resultantly, the Original Application is liable to be dismissed. Dismissed. No costs.