THE VICE CHAIRMAN DELHI DEVELOPMENT AUTHORITY v. NARENDER KUMAR & Ors.

From the Judgment and Order dated 09.01.2020 of the High Court of Delhi at New Delhi in WP (C) No.476 of 2019. With Civil Appeal Nos. 1881, 1882-1885, 1886, 1887, 1888 of 2022. Kailash Vasdev, Sr. Adv., Anshay Dhatwalia, Vishnu Mohan Nair, Ashwani Kumar, Anand Mishra, Amrendra Kumar Singh, Anant Vijay Palli, Nikhil Palli, Deepak Goel, Ms. Samta Pushkarna Mishra, Kamal Kumar Pandey, M. K. Bhardwaj, Ashutosh Kumar, Rajendra Beniwal, Ms. Bano Deswal, R. C. Kaushik, Mishra Saurabh, Advs. for the appearing parties. The following Order of the Court was passed: ORDER

#1. Special leave granted, in all these proceedings. With consent of counsel, this batch of appeals was heard finally.

#2. In all these appeals, the common question which arises is whether the reasoning adopted by the Delhi High Court to hold, and direct that the Modified Assured Career Progression Scheme (“MACP”) had to be applied from 01-01-2006, is correct. The appellant, Delhi Development Authority (hereafter called “DDA” or “the employer”) is primarily aggrieved by the ruling of the Delhi High Court1. Some of the successful petitioners (respondents in those proceedings, hereafter called 1 Delivered on 9 January, 2020 in WP 5927/2018, WP 5932/2018 and WP 476/2019. A B C D E F G H 484 SUPREME COURT REPORTS [2022] 4 S.C.R. A B C D E F G H “the employees”), have also appealed to this court, contending that the High Court’s directions were not correct and seek a modification of the relief granted by the impugned judgment. The DDA has preferred another appeal against a subsequent order2 which followed the previous order (dated 9th January, 2020). Relevant facts

#3. The Government of India introduced the Assured Career Progression Scheme (in short, ACP Scheme), by an office memorandum, in August, 19993, to remove stagnation. The salient features of the scheme are extracted below: “1. The ACP Scheme envisages merely placement in the higher pay scale/grant of financial benefits (through financial up- gradation) only to the government servant concerned on personal basis and shall, therefore, neither amount to functional/regular promotion nor would require creation of new posts for the purpose;

#2. The highest pay scale up to which the financial up- gradation under the Scheme was available was to be Rs 14,300-18,300. Beyond this level, there shall be no financial up-gradation and higher posts were filled strictly on vacancy- based promotions; ***

#4. The first financial up-gradation under the ACP Scheme shall be allowed after 12 years of regular service and the second financial up-gradation after 12 years of regular service from the date of the first financial up-gradation subject to fulfilment of prescribed conditions. In other words, if the first up-gradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc. this would have consequential effect on the second up- gradation which would also get deferred accordingly; ***

5.1. Two financial up-gradations under the ACP Scheme in the entire government service career of an employee shall be 2 Dated 11.02.2020, in WP. 528/2017. 3 OM dated 09.08.1999, which came into force on 09.08.1999 THE VICE CHAIRMAN DELHI DEVELOPMENT AUTHORITY v. NARENDER KUMAR & ORS. 485 counted against regular promotions (including in situ promotion and fast track promotions availed through Limited Departmental Competitive Examination) availed from the grade in which an employee was appointed as a direct recruit. This shall mean that two financial up-gradations under the ACP Scheme shall be available only if no regular promotions during the prescribed periods (12 and 24 years) have been availed by the employee. If an employee has already got one regular promotion, he shall qualify for the second financial up-gradation only on completion of 24 years of regular service under the ACP Scheme. In case two prior promotions on regular basis have already been received by an employee, no benefit under the ACP Scheme shall accrue to him;”

#4. The Sixth Central Pay Commission submitted its report on 24- 3-2008. These recommended the salary structure and allowances, conditions of service and retirement benefits of the Central Government employees and other public bodies, personnel belonging to the Defence Forces, Officers and employees of the Audit and Accounts Departments and Chairpersons and Members of Regulatory Bodies, except Reserve Bank of India. By a resolution dated 29-8-2008, the recommendations of the Central Pay Commission concerning civilian employees were accepted by the Central Government with respect to revised scales of pay and dearness allowances. It was resolved that these pay and allowances benefits would be applicable with effect from 01-01-2006.

#5. The Central Government, in supersession of the ACP Scheme, introduced the MACP scheme, by an office memorandum in May, 20194. The MACP was made applicable from an earlier date, i.e. 1stSeptember, 2008, through a specific condition in that scheme. The respondent employees had been appointed as regular Work Charged Malis, by the DDA, with effect from various dates, beginning from 03.01.1985. They were granted the first financial up-gradation under the ACP Scheme, w.e.f. 03.01.1997, i.e., on completion of 12 years of regular service. Subsequently, they became eligible for grant of the second financial up- gradation under the ACP Scheme, w.e.f. 03.01.2009, i.e., upon completion of 24 years of service. This benefit was not given to them by DDA. There is no dispute that under the MACP Scheme, the employees were 4 OM dated 19.05.2009 A B C D E F G H 486 SUPREME COURT REPORTS [2022] 4 S.C.R. A B C D E F G H granted the second MACP benefits- later. The employees’ grievance was that the DDA introduced the MACP scheme with effect from (01/ 09/2008) by an order dated 06.10.2009 and according to them, as their eligibility (indeed, as claimed, their entitlement) to claim the second ACP benefit had accrued to them earlier, they should have been granted the benefit of second ACP. Consequently, they approached the Central Administrative Tribunal (CAT) by filing original applications5. Proceedings before CAT

#6. Before CAT, the employee- respondents contended that the ACP Scheme was more beneficial to them, in comparison with benefits under the MACP Scheme. Therefore, as they had completed 24 years of service on various dates in January, 2009, before introduction of the MACP Scheme, (by OM dated 19.05.2009) they were entitled for the second financial up-gradation under ACP Scheme, even though the MACP Scheme was introduced with retrospective date, i.e., w.e.f. 01.09.2008.

#7. The DDA contended that since the MACP scheme become operative w.e.f. 01.09.2008, the employees were not qualified for the second ACP benefits, as they had not completed 24 years of service on that date. As a result, the grant of second ACP benefits w.e.f. January, 2009 could not arise. The ACP Scheme was valid up-to 31.08.2008. It was urged that the OM dated 19.05.2009 under which the MACP Scheme was introduced in supersession of ACP Scheme of 1999, which categorically stated that financial up-gradations in terms of the earlier ACP Scheme would be granted till 31.08.2008. None of the respondent employees challenged that provision of the MACP Scheme. As a result, they could not claim that their case for granting of second financial up- gradation benefits under ACP Scheme had to be considered w.e.f. January, 2009. DDA also relied on Para 11 of the MACP scheme which is as follows: “11. It is clarified that no past cases would be re-opened. Further, while implementing the MACP Scheme, the differences in pay scales on account of grant of financial up-gradation under the old ACP Scheme (of August 1999) and under the MACP Scheme within the same cadre shall not be construed as an anomaly.” 5 O.A.No.2005/2014; OA 1945/2014; OA 434/2016 THE VICE CHAIRMAN DELHI DEVELOPMENT AUTHORITY v. NARENDER KUMAR & ORS. 487

#8. The DDA’s contention was that the MACP scheme clearly envisioned a situation where past benefits, which had actually accrued and been granted to employees, under the ACP scheme, could not be withdrawn; however, the MACP scheme contained nothing enabling the employees to claim that, though it was introduced with effect from 1stSeptember 2008, yet since the memorandum was issued on 19.05.2009, they would be entitled to the benefits of the previous (i.e. ACP) scheme).

#9. The CAT, after considering the submission of parties, noticed judgments of the Delhi, Madras and Bombay High Court and was of the opinion that employees were entitled to the claim. Therefore, it allowed the applications preferred by the employees and directed DDA to consider their cases for granting of the financial up-gradations under the ACP Scheme till 19.05.2009, i.e., the date of issuance of the MACP Scheme, if they were otherwise qualified and eligible, and to grant appropriate pay scales accordingly, with all consequential benefits. Arrears were however, denied to the employees. Proceedings before the Delhi High Court

#10. The DDA’s argument before the Delhi High Court, which it approached, being aggrieved by CAT’s order, was that with effect from 1st September, 2008, the MACP Scheme had become operational and that the applicants- employees were no longer entitled to receive the benefits under the (erstwhile) ACP scheme. It was contended that the ACP scheme was valid only until 31st August, 2008. By that date the employees had not completed 24 years of service. It was submitted that since the MACP scheme was introduced by the Office Memorandum (“OM”) dated 19th May, 2009, superseding the earlier ACP scheme, the question of granting any benefit under the ACP scheme after 31st August, 2008 did not arise.

#11. The High Court relied on the decision of this court, in Union of India v. Balbir Singh Turn6 where it was held that Armed Forces Personnel, had to be given the benefit of the MACP from the date of the recommendations of the 6th Central Pay Commission (‘CPC’) i.e. 1st January, 2006 and not from 1st September 2008, as decided by the Central Government. Based on this logic, the High Court, in the impugned order, directed that MACP benefits should be extended to the employees of DDA from 1st January, 2006. 6 (2018) 11 SCC 99 A B C D E F G H 488 SUPREME COURT REPORTS [2022] 4 S.C.R. A Contentions of parties

#12. It was argued by Mr. Kailash Vasudev, Senior Counsel for DDA that the MACP scheme came into effect on 01.09.2008 and this should be the criteria with respect to which applicability of whether the old ACP or the MACP should be decided. The employees completed 24 years in January 2009 i.e. after the date of coming into force of the MACP, and hence were not entitled to up-gradation under the old ACP. It was argued that the decision in Balbir Singh(supra), relied on by the Delhi High Court, applied only to Armed Forces personnel and not civil establishments like the DDA.

#13. Counsel urged that it has been 12 years since the MACP scheme was implemented and a decision such as the impugned judgment would constitute judicial interference in policy matters and result in enormous financial implications. The decision of this court in Chandi Prasad Uniyal v State of Uttarakhand7 was cited to urge that excess payments of public money cannot be permitted to be retained. It was contended that the High Court failed to recognise that the respondents became eligible for the second up-gradation only after the date of issuance of the MACP and consequently were not entitled to an up-gradation under the old ACP scheme.

#14. It was emphasized, by citing this court’s judgment in State of U.P. & Ors. Vs. U.P. Sales Tax Officer Grade-II Officer8, that :- “decision of expert bodies like the pay commission is not ordinarily subject to judicial review, obviously because pay fixation is an exercise requiring going into various aspects of the posts held in various services and nature of the duties of the employees.” This court’s judgment in Secretary Government (NCT of Delhi) and Ors. Vs. Grade-I officers Associations & Ors9, was also relied on. The court had, in that judgment, refused to interfere with the ACP Scheme as it would have violated the government’s policy and further held that exercise of judicial review would not be proper. The court upheld the ACP Scheme and the conditions therein.