(Prayer: Writ Petition filed under Article 226 of the Constitution of India seeking issuance of a Writ of Certiorari calling for the records relating to the impugned order passed by the Central Administrative Tribunal, Chennai Bench the second respondent herein in O.A.No.969/2016 dated 10.01.2024 and quash the same.)
S.M. Subramaniam, J.
Union of India preferred the present writ petition challenging the order of the Central Administrative Tribunal, Chennai Bench, dated 10.01.2024 in O.A.No.969 of 2016.
2. The first respondent filed original application challenging the orders of the fourth respondent dated 22.05.2013 and 27.05.2015 rectifying the error occurred while granting the benefit of Assured Career Progression Scheme (ACPS) and the Modified Assured Career Progression Scheme (MACPS).
3. The Central Administrative Tribunal, Chennai Bench, relied on the order of the Central Administrative Tribunal, Chandigarh Bench dated 14.11.2019 passed in O.A.No.687 of 2018. However, the first petitioner/Union of India would mainly contend that the facts are dissimilar and the eligibility for grant of MACP to be considered on a case to case basis. Therefore, the rectification of error made by the Union of India is in consonance with the terms of the MACP, which was not considered by the Central Administrative Tribunal, Chennai Bench.
4. The gist of the issue is that whether the reliance made by the Central Administrative Tribunal, Chennai Bench, on the order of the Central Administrative Tribunal, Chandigarh Bench, for grant of relief to the respondent without considering the factual distinction is correct or not or the facts are dissimilar.
5. The Assured Career Progression Scheme (ACPS) and the Modified Assured Career Progression Scheme (MACPS) are two benevolent schemes introduced by the 5th Central Pay Commission and 6th Central Pay Commission respectively so as to cater to those government employees/ officers, who could not get regular promotion. In order to ensure monetary benefit, two schemes were introduced by the Government of India.
6. The purpose for introducing these two schemes is explained hereunder:
| ACPS Assured Career Progression Scheme | MACPS Modified Assured Career Progression Scheme |
| - Brought in by 5th CPC w.e.f. 09.08.1999 {DoPT OM No 35034/1/97-Estt(D)}. - Provided for two upgradations in the immediately next higher pay grade - only if - the concerned employee/officer is not given regular promotion. The timeline prescribed was as follows: i. 1st ACP - after 12 years of service from date of joining. ii. 2nd ACP - after 24 years of service from date of joining. | - Brought in by 6th CPC w.e.f. 01.09.2008 (DoPT order dated 19.5.2009). - Modified the ACPS to increase number of upgradations available from two to three in the following time-frame: i. 1st MACP - after 10 years of service from date of joining. ii. 2nd MACP - after 20 years of service from date of joining. iii. 3rd MACP - after 30 years of service from date of joining. |
8. The chronology of career progression/pay scales of the first respondent in the Botanical Survey of India is as under:
| Sl.No. | Date/year | Post | Pay scale |
| 1. | 07.08.1978 | Appointed as Artist | Rs.330-560/- (3rd CPC) Rs.4000-6000/- (5th CPC) |
| 2. | 14.11.1985 | Promoted as Senior Artist | Rs.425-700/- (3rd CPC) revised to Rs.1400-2300/- (4th CPC w.e.f. 1.1.1986 revised to Rs.5000-8000/- 5th CPC w.e.f. 1.1.1996) |
| 3. | 11.05.1999 | Re-designated as Artist Gr.I | Rs.5500-9000/- 5th CPC w.e.f. 01.01.1996 |
| 4. | 07.08.2002 | Artist Gr.I | Granted Assured Career Progression (ACP) in terms of DoPT OM dated 09.08.1999 in the pay scale of Rs.6500-10,500/- (5th CPC). Revised to Rs.9300-34,800/- with a Grade Pay of Rs.4,200/- as per VI CPC w.e.f. 01.01.2006. |
| 5. | 18.12.2009 | Artist Gr.I | Rs.6500-10,500/- (5th CPC) upgraded to Rs.7,450-10,500/- vide Ministry of Finance OM dated 13.11.2009 and BSI's order dated 18.12.2009 w.e.f. 01.01.2006. Revised to Rs.9,300-34,800/- with a Grade Pay of Rs.4,600/- (6th CPC) |
| 6. | 19.04.2010 | Artist Gr.I | In terms of DoPT OM dated 19.05.2009 regarding Modified Assured Career Progression (MACP) granted 3 MACP in the grade pay of Rs.4600/-, 4800/- and 5400/-w.e.f. 01.09.2008 considering his existing Grade pay of Rs.4200/-. |
| 7. | 22.05.2013 | Artist Gr.I | Revised MACP order with 2nd and 3rd MACP in the grade pay of Rs.4600/- and 4800/- w.e.f. 01.09.2008 considering existing grade pay of Rs.4200/- subsequent to observations of audit dated 06.12.2012. |
10. The issue was taken up for review and an appropriate pay scale was provided to the first respondent under the MACP scheme by issuing order dated 22.05.2013 and the earlier order dated 19.04.2010 which was wrongly issued by the Authority stood withdrawn. However, the first respondent was drawing Grade Pay of Rs.4,600/- as on 01.09.2008 and he was eligible for third MACP in the Grade Pay of Rs.4,800/- only considering his promotion as Sr.Artist on 14.11.1985 and grant of second ACP on 07.08.2002. Thus, as he had already been awarded two financial upgradations on account of promotion and second ACP, he was eligible only for third financial upgradation under MACP guidelines dated 19.05.2009. The revised order dated 22.05.2013 through which the first respondent was granted 2nd and 3rd MACP in the grade pay of Rs.4,600/- and Rs.4,800/- respectively with effect from 01.09.2008 considering existing Grade Pay of Rs.4,200/- was incorrect on the ground that the first respondent was rightfully drawing pay scale of Rs.4,600/- with effect from 01.01.2006 on account of upgradation of the scale of Artist Grade I from Rs.6500-10500/- (Rs.4,200 Grade Pay) to Rs.7450-11500 (Rs.4,600 Grade Pay). Therefore, the grant of second ACP will not be ignored on account of upgradation of pay scale Rs.6500-10500/- (Rs.4,200 Grade Pay) to Rs.745011500/- (Rs.4,600 Grade Pay). This, however, does not negate the grant of two financial upgradations and the admissibility of only third MACP in the Grade Pay of Rs.4,800/- with effect from 01.09.2008.
11. After receipt of the order dated 22.05.2013, the first respondent made a representation dated 01.07.2014 to the Director, Botanical Survey of India, Kolkata/second petitioner requesting to review/recall the decision dated 22.05.2013. The Scientist 'F' & Head of Office, Botanical Survey of India, Coimbatore/third petitioner issued an Office Memorandum dated 20.02.2014 to the first respondent informing that excess amount of Rs.1,58,065/- was paid to him through regular pay bills, arrears of pay and allowance bills and directed the first respondent to refund the said amount, failing which the amount will be recovered in equal monthly installment of Rs.20,000/- per month from the salary. As per Government Rules, any excess payment made has to be recovered. Accordingly, the excess amount paid to the first respondent by grant of higher pay scale by mistake was to be recovered. On 19.02.2014 and 20.03.2015, the first respondent made a representation to the Director, Botanical Survey of India, Kolkata/second petitioner to restore the earlier order and to re-fix the Grade Pay of Rs.5,400/-.
12. Learned counsel for the first respondent would mainly rely on Clause 5 of the MACP and a close reading of Clause 5 would show that the correct pay of Rs.5,400/- fixed to the first respondent is not in accordance with Clause 5 of MACP. Thus, the audit objection raised by the Principal Director of Audit was taken into consideration and a revised fixation was done correcting the error. Accordingly, the third MACP was granted to the first respondent under pay band 2 i.e. Rs.9300-34800 + Grade Pay Rs.4,800/- with effect from 01.09.2008. Thus, the benefit of concerned MACP was also extended to the first respondent by correcting the error occurred in the earlier fixation.
13. Correction of error in the fixation of pay or extending financial schemes to the employees cannot be said to be incorrect. In the present case, the initial fixation fixed by the Establishment was identified as wrong and the Principal Director of Audit found that the first respondent is not eligible for award of current pay of Rs.5,400/-, but, he is eligible to receive Rs.4,800/-. Thus, the current pay alone was corrected.
14. The Central Administrative Tribunal, Chennai Bench, has not considered the individual facts while following the orders passed by the Central Administrative Tribunal, Chandigarh Bench. Regarding pay fixation, the facts relating to service are to be considered independently and in the present case, the first respondent secured one promotion and therefore, the said fact is relevant for granting ACP/MACP.
15. The Tribunal has not taken into consideration that as per the MACP Scheme, the 6th Central Pay Commission had merged the pre-revised scale of pay of Rs.5000-8000/- and Rs.5500-9000/- into a single pay scale with PB-2 with single pay Rs.9300-Rs.34800/- and Grade Pay Rs.4,200/-. On 07.08.2002, second ACP in the pay scale Rs.6500-200-10500/- was granted to him. Thereafter, 6th CPC merged three pre-revised pay scales, i.e. Rs.5,000-8000/-, Rs.5500-9000/- and Rs.6500-10500/- into a Pay Band 2 of Rs.9300-34800/- with Grade Pay of Rs.4,200 with effect from 01.01.2006 and the scale of Rs.6500-10500/- was further upgraded in the Pay Band 2 with Grade Pay of Rs.4,600/-. The first respondent was drawing Grade Pay of Rs.4,600/- as on 01.09.2008 and he was eligible for third MACP in the Grade Pay of Rs.4,800/- only considering his promotion as Sr.Artist on 14.11.1985 and grant of Second ACP on 07.08.2002. Thus, as he had already been awarded two financial upgradations on account of promotion and second ACP, he was only eligible for third financial upgradation under MACP guidelines dated 19.05.2009. On account of upgradation of the scale of Artist Grade I from Rs.6500-10500/- (Rs.4200 GP) to Rs.7450-11500/- (Rs.4600 GP), the grant of second ACP will not be ignored on account of upgradation of pay scale of Rs.6500-10500/- (Rs.4200) to Rs.7450-11500/- (Rs.4600 GP). The Tribunal has wrongly interpreted and misconstrued the earlier order passed by the Central Administrative Tribunal, Chandigarh Bench, in O.A.No.687/2018 dated 14.11.2019. The facts and circumstances of the case referred by the Tribunal are different from the present case and also the order of the Central Administrative Tribunal, Chandigarh Bench is in personam.
In view of the above factual position as well as the terms of MACP, the impugned order passed by the Central Administrative Tribunal, Chennai Bench, dated 10.01.2024 in O.A.No.969 of 2016, is set aside. Accordingly, this writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.