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2019 Supreme(Del) 1380
IN THE HIGH COURT OF DELHI AT NEW DELHI
G.S. Sistani, Jyoti Singh, JJ.
P.S. Rajput – Appellant
Versus
Union of India and Ors. – Respondents
Writ Petition (Civil) No. 4929 of 2017; Civil Miscellaneous No. 21314 of 2017
Decided On : 12-02-2019
P. Sureshan, Adv., Amit Mahajan, Adv., Randeep Sachdeva, Adv.
The main legal point established is that under the MACP Scheme, 'regular service' for the purpose of financial upgradations can only be counted if the post held earlier carried the same Grade Pay, and the principle of estoppel can apply if a party silently accepts a benefit without agitating their claim.
Headnote:
MACP Scheme - Regular Service - Para 9 of the Scheme - Interpretation of Regular Service - Counting of Past Service - Direct Recruitment - Grade Pay - Financial Upgradation
Fact of the Case:
The petitioner sought the grant of 3rd MACP with effect from 02.01.2015, claiming that his entire past service from 1985 should be counted as 'regular service'. The respondents denied the 3rd MACP, counting the 'regular service' from 02.09.1997 when the petitioner was appointed as Head Constable.
Finding of the Court:
The court held that the petitioner's service as a Constable from 1985 to 1997 in a lower Grade Pay cannot be counted for MACP benefits. The court also noted the principle of estoppel, as the petitioner had silently accepted the benefit of the first MACP without agitating his claim for the 2nd MACP.
Issues: The main issue was whether the 'regular service' for the MACP Scheme should be counted from the initial appointment as Constable in 1985 or from the appointment as Head Constable in 1997.
Ratio Decidendi: The court interpreted the MACP Scheme and clarified that past continuous regular service can only be counted if the post held earlier carried the same Grade Pay. The court also applied the principle of estoppel, noting the petitioner's silence on the issue after accepting the benefit of the first MACP.
Final Decision: The court dismissed the writ petition, upholding the denial of the 2nd and 3rd MACP benefits to the petitioner, as per the provisions of the MACP Scheme.
Jyoti Singh, J.
The present petition has been filed seeking to set aside the office orders dated 02.03.2015 and letter dated 03.09.2015 whereby the respondents have denied the grant of 3rd MACP to the petitioner with effect from 02.01.2015 with a further direction to the respondents to grant him 3rd MACP with effect from 02.01.2015 with interest @18% per annum as well as arrears of pay and other consequential benefits.
2. The facts relevant to the present case are that the petitioner was appointed as a Constable (GD) with the CISF vide order dated 11/15.01.1985 w.e.f. 02.01.1985 in the pay scale 210-4-250-EB-5-270 After initial 6 months of training, he got his first regular posting on 08.07.1985 and was thereafter posted at various other Units of the CISF. Pursuant to direct recruitment taking place for the post of Head Constable (Driver), the petitioner also applied and was selected. He was finally appointed as Head Constable (Driver) on 02.09.1997 in a higher pay scale 975-25-1150-EB-1660.
3. The petitioner claims that no technical resignation was taken from him and for all other purposes, his entire past service from 1985 was counted. He also claims that as against the six months training which the other direct recruits were made to undergo, he was required to undergo only 28 days of training as he was already serving as a Constable with CISF.
4. He further claims that even the Force Number given to him at the time of appointment as Constable (GD) was continued for the post of Head Constable (Driver).
5. On 19.05.2009, the DOPT introduced the Modified Assured Career Progression Scheme (hereinafter referred to as 'MACP') for the Central Government employees and it was given effect from 01.09.2008. Under the Scheme, three Financial Upgradations were envisaged on completion of 10, 20 and 30 years of service as was provided in para 9 of the Scheme. The said scheme entitles an employee to an upgradation to the next higher Grade Pay. The petitioner completed 10 years of service in the rank of Head Constable (Driver) on 01.09.2007 and was granted first financial upgradation under the MACP vide order dated 15.03.2010, with effect from 01.09.2008 i.e. the date of implementation of the scheme itself. The 10 years period was counted by the respondents from 02.09.1997, taking the appointment of the petitioner from 02.09.1997 in the rank of Head Constable (GD) in CISF and not from 02.01.1985. Accordingly, his pay was fixed in the next higher Grade Pay of Rs. 2,800/- in PB-I.
6. On 07.03.2013, the petitioner was promoted in the ordinary course to the post of ASI/ Executive. Since, he was already getting the Grade Pay of Rs. 2,800/- , which was also the Grade Pay in the rank of ASI, no change in his Grade Pay was effected by the respondents.
7. On 02.01.2015, petitioner, in his perception, completed 30 years of service, counting the same from the initial appointment as Constable (1985) and therefore, sent a representation on 24.02.2015 seeking further financial upgradation under the MACP Scheme. In response to the said representation, the respondents sent a communication to him on 02.03.2015 stating therein that his 'regular service' for the purpose of MACP would be counted from 29.09.1997 and not from 02.01.1985. Not satisfied with the said response, the petitioner sent another representation on 26.05.2015, seeking further clarification. Vide letter dated 03.09.2015, the respondents reiterated their stand stating that his service in the rank of Constable (GD) could not be counted for MACP benefits as that was in lower Grade Pay. The petitioner was not satisfied even with this response and wrote a letter to the DIG on 09.08.2016, followed by a legal notice dated 25.01.2017. Not getting any favourable response, the petitioner filed the above writ petition praying that his period of service as a Constable with effect from 02.01.1
