Judgment & Order:

B. Bhattacharjee, J.

1. This set of two writ appeals has been filed against the Common Judgment dated 24.06.2024 passed by the learned Single Judge in WP(C) No.45 of 2015 and WP(C) No.46 of 2015 whereby the appellants herein (respondents in the writ petitions) were directed to take necessary steps by passing relevant orders to correct the anomaly made out by granting the 2nd and 3rd financial upgradation to the respondents/writ petitioners as determined in the judgment and to make necessary arrangements for payment of arrears etc. within a period of 3 (three) months.

2. The facts in WP(C) No.45 of 2015 are that the respondent/writ petitioner joined as a Junior Stenographer in NEHU on 06.03.1986. He was granted 1st financial upgradation under the One Time Upward Movement (OTUM) Scheme of UGC w.e.f. 06.03.1994 after completion of 8 years of service and his pay was revised and refixed in the pay scale of Rs. 5500-175- 9000 (5th CPC). Thereafter, pursuant to the implementation of the Assured Career Progression (ACP) Scheme in the month of August, 1991, the respondent/writ petitioner was granted 2nd financial upgradation vide office order dated 24.04.2006 w.e.f. 06.03.2006 and his pay was fixed in the pay scale of Rs.6500-200-10500 (5th CPC). In terms of the Modified Assured Career Progression (MACP) Scheme, the respondent/writ petitioner was granted 3rd financial upgradation and was placed in the pay scale of PB-2: Rs.9300-34800 with GP Rs.4800 (6th CPC) w.e.f. 17.07.2016. According to the respondent/writ petitioner, upon implementation of the 6th CPC, the old pay scales were restructured and the pay scales of Rs.5000-8000, Rs.5500- 8000 and Rs.6500-10500 were merged into the revised pay scale PB-2: Rs.9300-34800 with Grade Pay(GP) Rs.4200. The MACP Scheme was announced vide Office Memorandum dated 19.05.2009 providing grant of 3 financial upgradations at intervals of 10, 20 and 30 years of continuous regular service. Paragraph 5 of the MACP Scheme provided that promotions earned/upgradation granted under the ACP Scheme in the past to those grades which now carry the same grade pay due to merger of pay scale/upgradation of posts recommended by the 6th CPC shall be ignored for the purpose of granting upgradations under Modified ACPS. Since the respondent/writ petitioner was granted 1st financial upgradation to the pay scale of Rs.5500-175-9000 w.e.f. 06.03.1994 and 2nd financial upgradation to the pay scale of Rs.6500-200-10500 w.e.f. 06.03.2006 and both the said pay scales have been restructured and merged under the 6th CPC into PB-2: Rs.9300-34800 with GP of Rs.4200, he was entitled to be placed in PB-2: Rs.9300-34800 with GP Rs.4600 on 1st financial upgradation and in PB-2: Rs.9300-34800 with GP Rs.4800 on 2nd financial upgradation.

3. The situation in WP(C) No.46 of 2015 is somewhat similar to the above. The respondent/writ petitioner therein joined NEHU as a Stenographer on 04.09.1989. He was granted 1st financial upgradation w.e.f. 04.09.1997 under OTUM Scheme upon completion of 8 years of service and his pay was revised and refixed in the pay scale of Rs.5500-175-9000 (5th CPC). After implementation of the ACP Scheme, the respondent/writ petitioner was placed in the pay scale of PB-2: Rs.9300-34800 (6th CPC) with GP Rs.4600 w.e.f. 04.09.2009 by way of granting 2nd financial upgradation. Subsequently, respondent/writ petitioner was granted 3rd financial upgradation w.e.f. 01.09.2018 in the pay scale of PB-2: Rs.9300- 34800 (6th CPC) with GP Rs.4800 (Pay Level-8: Rs.47600-151100 under 7th CPC). On the basis of the same grounds raised in WP(C) No.45 of 2015, the respondent/writ petitioner asserted that he was entitled to be placed in PB-2: Rs.9300-34800 with GP Rs.4600 on 1st financial upgradation and in PB-2: Rs. 9300-34800 with GP Rs.4800 on 2nd financial upgradation.

4. The record reveals that the writ petitions were filed in the year 2015 and were subsequently amended. Thereafter, amended writ petitions were filed in the year 2024.

5. In both the writ petitions, the respondents/writ petitioners prayed for issuance of necessary direction for placing them in PB-2: Rs. 9300-34800 with GP Rs.4800 on 2nd financial upgradation and in PB-2 with GP Rs.6600 (Pay Band fixed 15600-39100) on 3rd financial upgradation under MACP Scheme w.e.f. the date of their respective entitlement.

6. The appellants filed their affidavit-in-opposition in both the writ petitions denying the claim of the respondents/writ petitioners.

7. The learned Single Judge, on the basis of the contentions raised by the parties, by impugned Judgment dated 24.06.2024 declined to pass any direction to place the respondents/writ petitioners in the relevant pay scale with GP of Rs.6600 on their 3rd financial upgradation under MACP Scheme. However, the learned Single Judge held that the respondents/writ petitioners were entitled to GP of Rs.4800 on 2nd financial upgradation and GP of Rs.5400 on the 3rd financial upgradation and accordingly, directed the appellant authorities to take necessary steps to pass relevant orders to correct the anomaly made out by granting the 2nd and 3rd financial upgradation to the respondents/writ petitioners as determined in the Judgment and to make necessary arrangement for payment of arrears, etc. in this connection. Being aggrieved, the appellants have preferred this set of two writ appeals against the impugned judgement of the learned Single Judge.

8. Mr. S. Sen, learned counsel appearing for the appellants, submits that the conclusion arrived at by the learned Single Judge is erroneous and not in proper appreciation of the relevant materials on record. He submits that the contention raised on behalf of the respondents/writ petitioners on the basis of the pay revision under 6th CPC and paragraph 5 of the MACP Scheme is utterly misconceived. He submits that though initially there was a merger of the pay scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 into revised pay scale of PB-2: Rs.9300-34800 with GP Rs.4200 under the 6th CPC, the pay scale of Rs.6500-10500 was subsequently taken out of the merger w.e.f. 01.01.2006 by Office Memorandum dated 13.11.2009 of the Ministry of Finance, Government of India and was granted higher GP of Rs.4600 in the pay band PB-2. He submits that admittedly the pay scale of Rs.6500-10500 with GP of Rs.4600 was no more in the ambit of merger on the day on which 2nd financial upgradation was made effective to the respondents/writ petitioners. He further submits that the order dated 30.10.2012 relied on by the respondents/writ petitioners to support their claim, was never circulated or given effect to and in fact, was withdrawn on the same day. He contends that in absence of any disclosure by the respondents/writ petitioners as to how they came to receive the copy of the order dated 30.10.2012, the same cannot be admitted as evidence. He submits that on overall consideration, the Judgment of the learned Single Judge is not tenable in the eye of law and liable to be set aside and quashed.

9. On the other hand, Mr. M. Chanda, learned counsel appearing for the respondents/writ petitioners submits that there is no illegality or infirmity in the Judgment passed by the learned Single Judge. He submits that under CCS (RP) Rules, 2008, pay scales of Rs.5000-8000 and Rs.5500-9000 were merged and placed in the pay scale of Rs.6500-10500 (Rs.9800-34800 with GP Rs.4200) w.e.f. 01.01.2006 and hence, the respondents/writ petitioners are entitled to be granted GP of Rs.4600 on their 2nd financial upgradation as per paragraph 5 of the MACP Scheme. He contends that the Office Memorandum dated 13.11.2009 of the Ministry of Finance, clearly provides that the posts which were in the pre-revised scale of Rs.6500-10500 would be granted revised pay structure of GP of Rs.4600 in the pay band PB-2 w.e.f. 01.01.2006 and therefore, the direction of the learned Single Judge to grant of GP of Rs.4800 on 2nd financial upgradation and GP of Rs.5400 on 3rd financial upgradation of the respondents/writ petitioners is totally valid and justified. He further submits that the claim of the respondents/writ petitioners to be placed in the pay scale of Rs 6500-10500 with GP of Rs.4600 w.e.f. 01.01.2006 is also correct in terms of the order dated 30.10.2012 of the Vice Chancellor, NEHU. In support of his submission, the learned counsel has placed reliance on an order of the High Court of Kerala, Ernakulam Bench dated 04.01.2023 in OP (CAT) No.179 of 2018, Union of India & ors v. All India Naval Clerks Association & ors and a Judgment dated 01.04.2015 of the same High Court in OP (CAT) No.142 of 2014, Union of India & ors v. T.M. Thomas upheld by the Apex Court in SLP(C) No.23053/2016. He, thus, submits that the direction of the learned Single Judge to place the respondents/writ petitioners in GP of Rs 4800 on 2nd financial upgradation and in the next higher GP of Rs 5400 on 3rd financial upgradation under the MACP Scheme cannot be faulted and prays for dismissal of both the writ appeals.

10. From the submissions made on behalf of the respective parties, it appears that there is no dispute between the parties with regard to the grant of 1st financial upgradation to the respondents/writ petitioners and their placement in the pay scale of Rs.5500-9000 under 5th CPC thereafter. The dispute raised in the present matter arose only after implementation of the revised pay structure under 6th CPC w.e.f. 01.01.2006. The 6th Central Pay Commission (CPC) Rules were officially notified on 29.08.2008, though its financial benefits took effect retrospectively from 01.01.2006.

11. As per the 6th CPC recommendation, three pre-revised scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 were initially merged and replaced by the revised pay structure of GP of Rs.4200 in the pay band PB-2. However, by Office Memorandum dated 13.11.2009, the pay scale of Rs.6500-10500 was taken out of the merger and granted GP of Rs.4600 in the pay band PB-2 w.e.f. 01.01.2006. The relevant extract of the aforesaid Office Memorandum is reproduced below: -

                   “3. Consequent upon the Notification of CCS (RP) Rules, 2008, Department of Expenditure has received a large number of references from administrative ministries/departments proposing upgradation of the posts which were in the pre-revised scale of Rs.6500-10500 as on 1.1.2006 by granting them grade pay of Rs.4600 in the pay band PB-2. The matter has been considered and it has now been decided that the posts which were in the pre-revised scale of Rs.6500-10500 as on 1.1.2006 and which were granted the normal replacement pay structure of grade pay of Rs.4200 in the pay band PB-2, will be granted grade pay of Rs.4600 in the pay band PB-2 corresponding to the pre-revised scale of Rs.7450- 11500 w.e.f. 1.1.2006. Further, in terms of the aforementioned provisions of CCS(RP) Rules,2008, in case a post already existed in the pre-revised scale of Rs.7450-11500, the posts being upgraded from the scale of Rs.6500-10500 should be merged with the post in the scale of Rs.7450-11500.”

12. Upon implementation of the 6th CPC with effect from 01.01.2006, the pay scale of Rs.5500–9000, which had been granted to the respondents/writ petitioners on their 1st financial upgradation, was revised to PB-2 Rs.9300- 34800 with GP of Rs.4200. Although, at the time of the initial implementation of the 6th CPC, the pre-revised pay scales of Rs.5500-9000 and Rs.6500-10500 under the 5th CPC were both placed in PB-2 with the same GP of Rs.4200, the position underwent a material change upon issuance of the Office Memorandum dated 13.11.2009. By the said Office Memorandum, the pre-revised pay scale of Rs.6500-10500 was excluded from the merger and upgraded to PB-2 Rs.9300-34800 with GP of Rs.4600 with retrospective effect from 01.01.2006. Consequently, the pre-revised pay scale of Rs.6500-10500 ceased to form part of the merged pay structure and thereafter constituted a higher pay scale in the pay hierarchy.

13. There is no dispute to the fact that the respondent/writ petitioner in WP(C) No.45 of 2015 was granted 1st financial upgradation on 06.03.1994 and the respondent/writ petitioner in WP(C) No.46 of 2015 was granted 1st financial upgradation on 04.09.1997. It is evident from the materials on record that on 01.01.2006 the respondents/writ petitioners in both the writ petitions were placed in pay scale of Rs.5500-9000 (5th CPC) corresponding to the revised pay scale of PB-2 Rs.9300-34800 with GP of Rs.4200 under the 6th CPC. The respondent/writ petitioner in WP(C) No.45 of 2015 was granted 2nd financial upgradation w.e.f. 06.03.2006 and the respondent/writ petitioner in WP(C) No.46 of 2015 was granted 2nd financial upgradation w.e.f. 04.09.2009. It is only after the grant of 2nd financial upgradation, they were placed in the pay scale of PB-2: Rs.9300-34800 with GP of Rs.4600. There is nothing on record to show that they were placed in the pay scale of Rs.6500-10500 prior to grant of 2nd financial upgradation. The grant of a higher grade pay within the same pay band constitutes a financial upgradation. Under the framework of the MACP Scheme, moving to the next higher grade pay results in an increase in pay and counts as an upgradation.

14. Paragraph 5 of the MACP Scheme contemplates that promotions earned/upgradation granted under the ACP Scheme in the past to those grades which now carry the same grade pay due to merger of pay scales/upgradation of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradation under MACP. However, in the instant matter as it is apparent from the foregoing discussion that there was no merger of pay scale of Rs.5500-9000 and pay scale of Rs.6500-10500 under the 6th CPC consequent to the issuance of the Office Memorandum dated 13.11.2009 of the Ministry of Finance, Government of India, the question of application of paragraph 5 of the MACP Scheme in the case of the respondents/writ petitioners does not arise. Hence, the observations and findings recorded by the learned Single Judge in granting relief to the respondents/writ petitioners is not correct in the facts and situation of the present matter.

15. Insofar as contention of the learned counsel for the respondents/writ petitioners with regard to the order dated 30.10.2012 of the Vice Chancellor, NEHU is concerned, it is apparent from the record that the said order was never circulated to any of the concerned employees and was withdrawn on the same date.

16. The decisions relied upon by the learned counsel for the respondents/writ petitioners are also of not any help to the respondents/writ petitioners as the decisions have no bearing in the facts and situation of the present case.

17. In view of the discussions made above, we are unable to uphold the decision of the learned Single Judge and accordingly set aside the impugned Common Judgment dated 24.06.2024.

18. The WA No.58 of 2024 and WA No.59 of 2024 are allowed. However, in the facts and situation of the matter, there will be no order as to costs.